My Lords, I am sure that your Lordships' House is delighted to return to Committee on the Scotland Bill. It seems some time since we discussed these matters—and indeed it is, so we are glad of the opportunity to debate this important piece of constitutional legislation.

The amendments I will move and speak to today are probing in nature. Amendments 44B, 45A and 45B seek to explore the apparent inconsistency between the names and the appointment processes of the Scottish Crown Estate Commissioner and the BBC Trust member for Scotland as they are set out in the Bill. Noble Lords had the benefit of a debate that took place in Committee on 2 February 2012 on Amendment 44A, which was moved by my noble friend Lord Sewel in an attempt to identify the reason for these apparent differences. I shall return to the Hansard report of that debate shortly; I give the Minister notice that I will draw on the words of his colleagues in the debate to support the amendments that I have tabled.

I will say also that I welcome Amendment 45 in the name of the noble Lord, Lord Selkirk of Douglas. I put my name to it as it exactly replicates an amendment tabled in another place by my honourable friend the Member for Rutherglen and Hamilton West, Tom Greatrex, but not debated because of insufficient time.

Amendments 44B and 45A amend the title given in Clause 22 to the new commission role from the “Scottish Crown Estate Commissioner” to the,

“Crown Estate Commissioner for Scotland”.

I recognise that in itself this is a minor change to the Bill, but it raises a wider point about the consistency of the new roles for Scotland that are created by this Bill. The proposal for the change in title is derived directly from the format established in Clause 20 with the,

“BBC Trust member for Scotland”—

not the “Scottish BBC Trust member”. We believe that there should be consistency in the Bill in the naming of the new executive roles in Scotland and we ask the Minister why the decision was taken to use a different configuration for the title of the “Scottish Crown Estate Commissioner”.

The point about inconsistency becomes more important with the issue raised by Amendment 45B. The appointments process for the BBC Trust member for Scotland is that:

“A Minister of the Crown must not exercise without the agreement of the Scottish Ministers functions relating to selection for a particular appointment”.

However, the appointments process proposed for the “Scottish Crown Estate Commissioner” is in,

“the recommendation of the Chancellor of the Exchequer”,

in consultation with Scottish Ministers. This is the exact point that my noble friend Lord Sewel raised in the debate on 2 February. I am looking now at the Official Report and the words of the noble Baroness, Lady Rawlings, in seeing off my noble friend’s amendment. She said that,

“broadcasting remains a reserved matter”.—[Official Report, 2/2/12; col. 1785.]

So does the role of the Crown Estate Commission. She went on to say:

“It is our view that this”—

my noble friend’s amendment—

“does not give the Scottish Government sufficient involvement in the appointment process. Securing the agreement of the Scottish Government is the appropriate way of involving them in the appointment process for the BBC Trust member for Scotland. The existing provision gives the Scottish Government an important and appropriate power and the UK Government do not wish to weaken this. I hope that this satisfies the noble Lord, Lord Sewel, and I urge him to withdraw his amendment”.—[Official Report, 2/2/12; col. 1786.]

I draw exactly on that argument and wish to apply it to the appointment of the new Scottish commissioner for the Crown Estates.

Amendment 45B brings the appointments process for the Scottish commissioner closer into line with that of the BBC Trust member by proposing that Scottish Ministers should make the recommendation,

“with the agreement of the Chancellor of the Exchequer”.

These are not issues on which I will seek to test the opinion of the House. I raise them in an effort simply to elicit further information from the Minister about the reasons for these inconsistencies. I am fully prepared to accept that there may be good ones, but I cannot for the life of me at the moment think of what they are, but I wait with bated breath.

I would also like to speak in support of Amendment 45, which replicates a provision tabled by my honourable friend the Member for Rutherglen and Hamilton West to probe the appointments criteria intended for the new role of the Scottish Crown Estate commissioner. At present, there has been no discussion and no detail presented about the sort of qualifications expected of this important role. I look forward to hearing from the noble and learned Lord what conversations the Government have had with the Crown Estate Commission with regard to the proposed new role and the appointments process and qualifications expected. In anticipation of this debate, I had inquiries made of the commissioner’s office as to what qualifications would be expected. With all due respect to the answer I received, it did not make it any clearer to me exactly what would be expected of a commissioner, never mind the one who represented Scotland.

My Lords, I want to address Amendment 45, to which the noble Lord has just referred. This amendment inserts into Clause 22 a commitment to ensure that before a person finds himself or herself in the role of Crown Estate Commissioner for Scotland, that person should be well qualified to do the job. The reason for this is that the resources and responsibilities of the Crown Estate Commission in Scotland are very great—its value is believed to be about £207 million—and I understand that last year, its revenue surplus was more than £9 million, to which the Treasury was entitled under the Civil List Act 1952. The actual Crown Estate is very considerable in Scotland, and has many responsibilities for farms, forests and estates, some of which have many sites of special scientific interest. But the responsibilities do not stop there.

The various Crown regalia include the areas on the coast between high and low tide, and it is no surprise that the Crown Estate has the rights to the foreshore and the seabed, as well as rights for minerals and for salmon fishing. The Minister, the noble and learned Lord, Lord Wallace of Tankerness, may be one of the few in this House who will be aware that in Orkney and Shetland, which he used to represent as an MP, the Crown Estate had absolutely no salmon rights at all. This is because in the past feudal law did not apply there, but udal law did. However, I must say that the Crown Estate has been extremely busy elsewhere, and is actively helping to develop ports and harbours which will benefit the tourist industry which is so important to Scotland. It has, in addition, many major investments in renewable energy, and may invest up to £20 million more during the next few years.

I have a very high regard for the Crown Estate commissioners and wonder whether it might be appropriate to recognise in this legislation their expertise in carrying out their important duties. At present, no detail is put forward in the Bill relating to the qualification of the person who might be appointed. This probing amendment would ensure that the holder of this office will remain highly qualified. I am grateful to the noble Lord, Lord Browne of Ladyton, and the noble and learned Lord, Lord Boyd of Duncansby, for adding their support to this amendment.

It has not escaped us that the Secretary of State for Scotland recently made a significant statement about the Crown Estate. He established a coastal communities fund, a grant-giving body, which comes into effect from April. He is hoping for innovative bids. This is funded from the Crown Estate’s marine activities. The fund is UK-wide and relates to charities, businesses, social enterprise and local organisations. It allows for the support of economic development relating to the environment, education and health. I understand that £4 million will be allocated every year in Scotland. That is an indication of revenues raised in Scotland being put to very good use. Is it not the case that, with the Crown Estate Commission having such an important role, the person who looks after its interests should be properly qualified? If the Minister in his wisdom considers this amendment is not strictly necessary, I hope that he will give us all satisfactory reassurances.

My Lords, I support the amendments in the name of the noble Lord, Lord Browne of Ladyton. This may appear to be simply a matter of terminology, but a very important point is being made and it is not one just of consistency. The use of the phrase “Scottish Crown Estate Commissioner” in the Bill implies that there is a Scottish Crown. It is not a Scottish Crown estate; it is the Crown Estate in Scotland. The amendment in the name of the noble Lord, Lord Browne, makes that clear by suggesting that the commissioner should be referred to as the “Crown Estate Commissioner for Scotland”.

That is deeply worrying and I do not know what is going on in the Scotland Office. This sloppy attention to language is creeping in. It has a sort of nationalist feel about it. I should check with the clerk that it is within the rules of order to refer to the Crown here, but it might be appropriate to point out that the English Crown was taken over by the Scottish Crown in 1603 in a reverse takeover.

On an issue related to this use of language, the First Minister the other day referred to how after independence there would still be a United Kingdom, which is absolute nonsense. The United Kingdom was created in 1707 when the kingdom of Scotland and the kingdom of England—

Does the noble Lord mean 1606, not 1707?

It is nice to have something on which to disagree with the noble Lord. In 1603, we had the union of the Crowns. In 1707, we had the union of the Parliaments. The kingdom of Scotland and the kingdom of England ceased to exist in 1707 because the United Kingdom was created. Therefore, it is illiterate as well as misleading to suggest that there would still be a United Kingdom. If Scotland were to leave the United Kingdom, the United Kingdom would cease to exist. Whether or not the monarch went on to become the head of Scotland as head of state, the relationship would be similar to that enjoyed by Canada and Australia, but it would certainly not mean that the United Kingdom continues. For many people this may seem a kind of historical fact, but it is very important that we understand this, particularly when we have people in high office who seem determined to mislead people. I repeat that if Scotland leaves the United Kingdom, there will be no United Kingdom. I do not know what a kingdom represented by England, Ireland and Wales would be called.

To return to the subject of the amendment, the use of the terminology “Scottish Crown Estate Commissioner” is wholly wrong, and I hope that my noble friend will feel able to accept the amendment from the noble Lord, Lord Browne, which seems entirely sensible and very necessary.

My Lords, I am not certain that I fully agree with my noble friend.

That is a first.

Indeed. Let us try to identify what we are talking about. The Scottish Crown Estate is a pre-union institution. It was put together over many hundreds of years, developed particularly by King James IV, and one of the things that Scotland brought to the union. Therefore the reference to a Scottish Crown Estate commissioner sounds wholly correct. As regards the BBC—

I hate to mention this, but since then we have had the union of the Crowns and the union of the Parliaments. When the Scottish Crown Estate came into that union, it became part of the United Kingdom with a single monarch, and it is the Crown Estate in Scotland. I know that the noble Earl has very considerable historical roots, but we have to use the terminology that is appropriate for our time. Does he not agree?

No, I do not. No matter what the noble Lord says, the Scottish Crown Estate existed. I was going to make a point about the BBC. That is undoubtedly a British, 20th century creation, and therefore the idea of a BBC Trust member for Scotland is quite appropriate, but I do not think it is right to enter into the pretence that the Crown Estate is a British institution in Scotland.

My Lords, I wonder whether I can clarify the history on this. The union of the Crowns in 1603 formed the kingdom of Great Britain. The United Kingdom was formed in 1800 when a separate treaty with Ireland was also brought in. That gets the history absolutely correct.

My Lords, I wish to intervene in this debate particularly in relation to Amendment 45, tabled in the name of my noble friend Lord Selkirk. The qualifications of the Crown Estate commissioner for Scotland are absolutely vital. I have a certain amount of knowledge of this, having worked with four of the most recent Crown Estate commissioners for Scotland. The most important thing to remember is that they have to have an extremely good knowledge of farming and to know the countryside inside out. I am not so keen on what my noble friend has put in about the “law of Scotland”, but I am sure that all good farmers know about that. The last three Scottish commissioners have all been practical farmers, people who know what is going on on the land. That, so far as I am concerned, is the most important part of what we are now discussing.

In the past few years, two of the recent members from Scotland have become first commissioners for the Crown Estate. However it is decided who should be the Scottish commissioner, one must bear in mind that if someone is very good, they will probably go right to the top. Although I am happy to see changes made to bring the Scottish Parliament more into the loop, if you like, we have had a good example recently. We do not need to look at the crystal, we have the book. We have these experienced men who have carried out their work on behalf of the Crown Estate extremely well. I for one would urge a little bit of caution as to how the person is chosen.

I do not for one moment want to contribute to the history lesson but can contribute on the basis that I served on the Crown Estate for eight years. I was actively involved when commissioners from England, Scotland or Wales were appointed to the board of the Crown Estate and can assure noble Lords that it takes the process of appointment very seriously indeed. Advice is taken on the process itself, but it is a deliberate policy of the Crown Estate to appoint someone of stature from Scotland, who is going to contribute on behalf of Scotland, has a good understanding of the Scottish rural and fisheries scenes, and as far as possible will build a good relationship with the Scottish Parliament. I am reasonably relaxed about the precise qualifications that the amendment suggests. It is quite possible to encourage a CPD programme, once the commissioner has been appointed, to ensure that the commissioner is fully equipped to represent all the interests in Scotland.

I should just add that the Crown Estate has been very active in investing in Scotland. The whole commission is very committed to the Scottish agenda and will no doubt continue to be committed to it. I will also correct an earlier comment—the Crown Estate certainly has fish-farming interests in both Orkney and Shetland. I have visited both of them on a number of occasions wearing my Crown Estate hat and tried to build reasonable relationships with the fishing communities there.

My Lords, the noble Lord, Lord Curry, has talked about fishing in Scotland, and my noble friend Lord Mar and Kellie talked about the Crown Estate Commission being set up before the Act of Union. There are some areas of the foreshore of Scotland and some fishing areas that do not belong to the Crown Estate because of historical precedent.

I am most grateful to my noble friend Lord Selkirk for his amendment and strongly support it. I had the honour to be the apprentice of the Earl of Mansfield, who was not just Crown Estate commissioner for Scotland but first commissioner for the United Kingdom, which shows that Scotland is often best throughout the United Kingdom. I hope that what my noble friend has said in the course of this discussion will be taken on board and that my noble and learned friend will be able to accept this very wise piece of advice.

My Lords, I thank all noble Lords who have taken part in this debate. It has been an interesting and useful curtain-raiser to our debates today and important points have been made. I do not intend to go down the history-lesson route but I will deal with the point made by my noble friend Lord Forsyth. It is an opportunity to explain why different terminology and a different process of appointment have been used. Quite clearly, there is genuine need for clarification of that matter and I hope I will be able to do that.

I will first take the issue of the qualification of the person who will be appointed as the Scottish Crown Estate commissioner. I thank my noble friend Lord Selkirk for his amendment. When I was Member of Parliament for Orkney and Shetland, I had many dealings with the Crown Estate on issues of udal law, not least as to whether certain marina berths should have charges levied on them by the Crown Estate, or whether slipways passed over land that belonged to the Crown Estate or to the udal landowner. Some I won, some I did not. However, it indicates the breadth of the work the Crown Estate undertakes, including fish farming and marinas. Inshore and offshore renewable developments are, of course, becoming increasingly important within the area covered by the Crown Estate.

The position of the Crown Estate commissioner requires experience of operating at a senior board level as well as knowledge of one or more of the business sectors and activities in which the Crown Estate operates. These points were very forcibly made by my noble friend Lord Sanderson of Bowden and by the noble Lord, Lord Curry, who obviously speaks from his own experience of having been a Crown Estate commissioner.

The fact that my noble friend’s amendment relates specifically to land management and law would put an unnecessary restriction on who could be appointed. Of course, as we have already heard in this debate, there are areas of the Crown Estate’s business other than property or law with which it may well be an advantage for an appointee to have familiarity. The Bill provides for the person who should be appointed as a Scottish Crown Estate commissioner to have knowledge of Scotland and conditions there, but that person might in addition have a much broader range of experience and expertise that he or she can bring to the board. There might also already be commissioners on the board with expertise and experience in the areas specified by the amendment.

On the second leg of my noble friend’s amendment—the experience of the functions of the Crown Estate—I think it is fair to say, and I am sure the noble Lord, Lord Curry, will correct me if I am wrong, that few if any Crown Estate commissioners when appointed had direct experience of the functions of the Crown Estate under the 1961 Act. The right person for the job will need to have knowledge of Scotland and other relevant skills and experience. I hope the Committee will agree with me that it is important to achieve a balance of appropriate expertise on the Crown Estate board without placing undue restrictions or stipulations that could well rule out people who might otherwise be suitable candidates. I certainly think that the spirit of my noble friend’s amendment is in seeking to ensure that those bits of experience were brought to bear, but I hope he recognises that it will be impossible through the appointments process to have regard to other fields of experience as well if we put on restrictions.

The Minister mentioned the appointments process, but is there a clear understanding or requirement that the process must be carried out according to the principles of public appointments throughout the United Kingdom? I know that there are growing fears in Scotland, because of the dominance of the First Minister and the way in which he seeks to impose his views on institutions and organisations, that it is vital that there is a properly constituted appointments process for all public appointments.

I certainly believe that there should be transparency in the appointments process. Of course, we will come on to the actual mode of appointment of the Scottish Crown Estate commissioner, which would involve consultation with Scottish Ministers. It is fair to explain why, in terms of nomenclature and mode of appointment, we have different arrangements for the Crown Estate commissioner as opposed to BBC Trust members, for example.

I should say in support of the noble Lord, Lord Foulkes, that I think he was asking for rather more than that. I think he was asking for an assurance that the appointment would be subject to the normal Nolan rules and procedures, not just transparency.

I give way to the noble Lord, who may be able to shed light on this.

As the first Crown Estate commissioner who will be appointed under Nolan rules, I can say that those rules apply absolutely to the appointments to the Crown Estate. It is a very open and transparent process and, in Scotland, an agency would be used and it would be publicly advertised to try to attract the best people to that post. If there are those who are considered appropriate, the agency would try to approach and encourage those with suitable skills to apply for the position.

I am grateful to the noble Lord for that explanation. Indeed, the commissioners are appointed under the Office for the Commissioner for Public Appointments code. I hope that that gives the assurance sought by the noble Lord, Lord Foulkes, and my noble friend Lord Forsyth—but maybe not.

Can we have assurances that, after the Bill is enacted, they will continue to be appointed under the Nolan code? A lot of us fear—and this applies to the Crown Estate commissioner and even more to the BBC Trust representative—that if there is any undue political interference in that appointment, a lot of people in Scotland would have grave concern.

My Lords, there is no intention to change the manner of appointments under the Office of Public Appointments code. However, I will come on to talk about the consultation process that is due to take place, which by its very nature, as it is between the Chancellor of the Exchequer and the Scottish Ministers, will have a political dimension to it. One of the purposes of appointments under the Office of Public Appointments code is to ensure that there is indeed transparency and open competition and to achieve, as well, a balance of skills and backgrounds and avoid any potential conflicts of interest.

The amendment would change “Scottish Crown Estate Commissioner” to,

“Crown Estate Commissioner for Scotland”.

Perhaps I may explain to my noble friend that “Scottish” is not intended to qualify “Crown”, or indeed to qualify the two words “Crown Estate”, but to qualify the three words “Crown Estate Commissioner”. There are Crown Estate commissioners and therefore “Scottish” is the adjective to be applied to them. Unless we put commas in, I am not quite sure how we could make it clearer than that.

But the problem about “Scottish” being used as an adjective to qualify three words, or two words, is that it is not at all clear. It is extremely ambiguous as to whether the individual has to be Scottish and, if so, what definition is being applied. I think, for example, of the Duke of Atholl, who might be said to be Scottish but who spends practically no time in Scotland. Admittedly, his knowledge of Scotland may be quite considerable, but what does Scottish mean? I remember having a discussion about this with the Lord Lyon when I was gazetted. He claimed that I was Scottish because I had a Scottish name. Frankly, this is not sufficiently clear and the proposed amendment is much clearer.

My Lords, the position is that it must be a person who knows about conditions in Scotland as they relate to the functions of the commissioners but it does not say that the person has to be of Scottish ancestry or indeed has to have a Scottish name. As we have already discussed and debated, they may have a number of other qualities and it should not be restricted simply to a knowledge of land management or the law. If we were to start to pin it down more than that, we would start to get into difficulties as we might be excluding people who have much more to offer and who have a lot of potential. Clearly, my noble friend is not satisfied, but if he has a better wording—

I am a seeker after truth here, but the intervention of my noble friend illustrates the absurdity of the wording. It never occurred to me that “Scottish” would apply to the commissioner. What is being proposed by the noble Lord, Lord Browne, which is,

“Crown Estate Commissioner for Scotland”,

gives absolute clarity that this is the person who will be responsible for Scotland in the Crown Estate. My concern related to the fact that it was suggesting that it was the Scottish Crown Estate whereas my noble friend thinks it might be the Scottish commissioner. Therefore, we have in this debate illustrated why the noble Lord, Lord Browne, is absolutely right. I hope that my noble and learned friend will accept his amendment.

I am sorry to disappoint my noble friend but the problem with,

“Crown Estate Commissioner for Scotland”,

is that it would suggest that the Crown Estate commissioner’s role was restricted to Scotland. That is not the case. The person is expected to play a part in the board as a whole and the person's responsibility should not be physically restricted to Scotland. That is why we believe that to use the,

“Crown Estate Commissioner for Scotland”,

would restrict the role which that person could play on the board. That would be a very unfortunate thing to do. As we already heard, some of the previous Crown Estate commissioners who had a Scottish remit have gone on to be the first Crown Estate commissioner. It would be very disappointing indeed if we were to use a terminology that suggested that this person could not actually contribute to the work of the board when it related to matters outwith Scotland—or furth of Scotland, if I can use that expression.

If my noble and learned friend will allow me, if that argument stands then how have we managed to get away with the present incumbent being called the Scottish commissioner?

I am not sure that we are getting away with it. I am actually trying to propose that it is the commissioner who will have knowledge about conditions in Scotland. There is a distinction, if one chooses to reflect for a moment—

If you follow the logic of the argument that the noble and learned Lord has just put, it implies that the representative for Scotland on the board of the BBC could contribute only if the discussion was about Scotland. That is nonsense and we all know it.

My Lords, I shall explain. The BBC Trust is constituted in a very different way and using the expression “the BBC trustee for Scotland” makes sense in that context. The amendment would not affect the appointments process—

I am grateful to the noble and learned Lord the Advocate-General for Scotland for giving way. When I came into the Chamber of your Lordships’ House today, the Advocate-General for Scotland was answering a Question about Wales.

Because I have been asked to answer to your Lordships' House on matters relating to the Wales Office, as indeed I am asked to answer on matters relating to the Scotland Office, although I am not a Scotland Office Minister, and on matters relating to the Attorney-General’s Office as well. It would be unfortunate if it were suggested that the Crown Estate commissioner for Scotland was only for Scotland and did not have responsibilities. To answer the noble Lord’s point, I do not exercise any functions as Advocate-General for England because it does not have an Advocate-General.

Would a way out be to change it to the “Crown Estate Commissioner from Scotland”?

For the reasons given by my noble friend Lord Maclennan of Rogart, the Duke of Atholl may not actually have come from Scotland but may have had a lot to contribute. If someone has a bright idea that squares all these circles, I would be interested to hear from them.

My Lords, would perhaps “Crown Estate Commissioner with special responsibility for Scotland” solve all the problems?

The noble Lady’s suggestion certainly sounds much more promising. It could mean that we were not putting an artificial restriction on the role that that person could play on the board as a whole. As other noble Lords have indicated in this debate, the contribution made by the Crown Estate commissioner who currently has responsibilities of a Scottish nature has been very important to the overall working of the board. If we were to limit it by territory, there are parts of the United Kingdom where the Crown Estate does not necessarily have any activity and therefore it would become very unfortunate. I shall reflect on what the noble Lady has said. It was a helpful suggestion that reflects the fact that the person ought to have a knowledge of Scotland and be able to make a contribution on it, but they should also have a broader expertise that they can bring to the work of the board. That is what we are seeking to achieve.

I apologise for interrupting my noble and learned friend so frequently, but his argument needs a bit of shoring up. As I understand it, the argument is that if the Crown Estate commissioner were the Crown Estate commissioner for Scotland, he would not be able to participate on the board because he would appear to be concerned solely with Scottish interests. Can I take it, then, that the Government are planning to change the name of the Secretary of State for Scotland? On my noble and learned friend’s argument, that would imply that the Secretary of State for Scotland could not participate in Cabinet on matters that were across the range. That is an absurd argument, and my noble and learned friend might at least indicate that he will go away and think about it.

I am grateful to my noble friend for the shoring up. The very fact that we have had this debate on the wording suggests that if we had proposed something else, I can imagine that he would have been one of those saying, “Of course, you mean that this person can make a contribution only in respect of Scotland and that is not acceptable as that person needs to have a wider remit”. As I indicated to the noble Lady, Lady Saltoun, her suggestion is worthy of further consideration and I shall consider it. If it answers the key point, which is that the person should have knowledge of Scotland and should not be restricted in terms of their qualifications—the broad totality of what is required for the board should be a factor in that person’s appointment, but the person might also have a special responsibility for Scotland or particular interests there—then that might well address the need without being unduly restrictive or indeed giving a misleading description of what that person’s role would be. I thank the noble Lady for that suggestion, to which I will most certainly give consideration.

Because of that wider responsibility, it is important that the appointment of all commissioners should be made by the sponsoring Minister, in this case the Chancellor of the Exchequer. I reassure noble Lords that he will make a recommendation for the appointment of this particular commissioner only after consulting Scottish Ministers and listening carefully to what they say. That appropriately balances the need for both a Scottish interest and a UK-wide perspective on the appointment process.

There is particular concern over why there has been a different process for that appointment from that for the Scottish member of the BBC Trust. The BBC Trust has a different constitution from the Crown Estate. Under its charter, the BBC has obligations to broadcast to all parts of the United Kingdom and to have a member of its trust for each of the nations that make up the United Kingdom. That is very distinct from the position of the Crown Estate, which has no such requirements. Indeed, as I indicated a moment ago, it does not even have to have a presence in any particular part of the United Kingdom.

The appointment of all Crown Estate commissioners is by Her Majesty on the recommendation of the Chancellor, reflecting the UK-wide responsibility of every commissioner. The UK Government will still need to discuss the Scottish appointments of both organisations with Scottish Ministers to ensure that the best people to represent Scottish interests are appointed.

The noble Lord, Lord Browne, asked about the status of the Crown Estate in the Bill. It is certainly the Government’s intention to consider the report of the Scottish Affairs Committee alongside the request that was made by the Scottish Government for further powers in relation to the Crown Estate. The Government believe that the Crown Estate operating on a UK-wide basis offers the best value across the whole of the United Kingdom, but we recognise the role that the Crown Estate plays in local communities and wish to work with it to ensure that it operates most effectively with them.

Particular to that is the coastal communities fund, which was mentioned by my noble friend Lord Selkirk. The Chief Secretary to the Treasury announced the establishment of that fund, which will be financed by the Government through the allocation of funding equivalent to 50 per cent of the revenue from the Crown Estate’s marine activities. It is linked to revenue that is raised by the Crown Estate’s marine activities each year and the funding will be available on a bid basis. The Government will welcome bids from charities, businesses, social enterprises and local organisations. In that way, we can build a stronger link between the activities of the Crown Estate, particularly in coastal communities, including those that are affected by such activities. It is a very positive step, which recognises the role of the Crown Estate.

I have indicated that I will certainly give further consideration to nomenclature and thank the noble Lady for her helpful suggestion. However, I have also indicated that there is a distinction between the constitution of the Crown Estate on the one hand and that of the BBC Trust on another. The latter has a specific requirement to serve specific parts of the United Kingdom, which is why not only the nomenclature but the mode of appointment is different. On that basis, I urge the noble Lord to withdraw his amendment.

I am very grateful to all noble Lords who have taken part in what proved to be a much more interesting debate than I expected. I made clear in my introductory remarks that these are probing amendments, which implied that I had no intention of dividing the House. Having listened to the argument, I am severely tempted to do so because it may turn out to be the high point of my career in the House of Lords but I will resist the temptation.

I am grateful to the noble Lord, Lord Forsyth of Drumlean, who immediately got the point that underpinned the argument about nomenclature. However, I agree with the noble and learned Lord, Lord Wallace of Tankerness: I always thought that the adjective qualified the “Crown Estate” commissioner, rather than “Crown”, which is exactly what led to the confusion that has been apparent in the debate. I have to say that I am far from totally persuaded that,

“Crown Estate Commissioner for Scotland”,

bears the narrow interpretation or function that the noble and learned Lord has attributed to it. Try as I might to apply that argument consistently to many other titles, at least one of which I have held as a former Secretary of State for Scotland, it did not seem to me to stand the test of that destructive analysis.

However, I am pleased that the noble and learned Lord has, on behalf of the Government, indicated that he is prepared to take away the issue of nomenclature and think about it. There needs to be clarity of language in the politics of Scotland. We may sometimes misinterpret and play with words for the purposes of debate but people in Scotland use these words very carefully. I have learnt in my political career that where there are strong divisions of opinion—for example, in Northern Ireland—vocabulary and phraseology matter to people and are used in particular ways. Therefore, I am grateful to the noble and learned Lord for agreeing to take this issue away.

I am persuaded by the noble and learned Lord’s explanation of the reason for the different phraseology as regards the process of identification, selection and appointment. I was not aware of that difference and had not uncovered it in my researches. I am grateful to all noble Lords, and particularly to the noble Lord, Lord Selkirk of Douglas, for tabling an amendment, the style of which may have been influenced by one of my colleagues. That was helpful as it gave the noble and learned Lord the opportunity to put on the record information about the appointments process which will benefit that process and the openness of government. This has been a worthwhile debate. As usual with this Bill, issues which are apparently comparatively straightforward turn out to be interesting and educational. I beg leave to withdraw the amendment.

In view of the reassurances given by my noble and learned friend, I shall not move the amendment.

My Lords, I wish to speak to this amendment briefly as it is a probing amendment. It would ensure that the Secretary of State must consult on regulations made under Section 10 of the Misuse of Drugs Act. The reason for this is that the drugs concerned are controlled drugs and licensing provision should have proper consultations. If the amendment is accepted in principle, it would mean that the regulation-making power would be subject to the principles of openness and transparency. Consultations in this case are important in view of the importance of the subject and the new breakthroughs in research that are occurring all the time. Further, circumstances can differ widely from one area to another and consultations would mean that the Government would pick up whatever special circumstances existed in different areas.

I hope the Minister in his wisdom will feel able to look favourably on this matter and that he will stress the importance of good practice and best practice. I beg to move.

I hope my noble and learned friend will agree that it would always be appropriate in these circumstances to consult NICE.

My Lords, I speak only because of my support for a previous amendment that was withdrawn, and I shall explain that position. As the noble Lord, Lord Selkirk of Douglas, explained, the effect of the amendment is to impose upon the Home Secretary an obligation to consult,

“with such persons as he or she considers appropriate”—

I suppose in this case it is “she”—when making regulations under Section 10 of the Misuse of Drugs Act but, peculiarly, only when such regulations apply to Scotland.

At first, I was attracted to the idea of a statutory requirement to consult. I was so attracted that I and my noble and learned friend sought to move a complementary amendment imposing a similar obligation on Scottish Ministers in the exercise of the new powers relating to licensing that they will enjoy when the Bill in enacted. However, after more detailed research, I have come to the conclusion that the imposition of such an obligation is not necessary in either case, which is why I have withdrawn from the Marshalled List the amendment that stood in my name and that of my noble friends.

I will not detain the House further, but the reason for that is because my research has revealed an extensive commitment to consultation by the UK and Scottish Governments and the Scottish Parliament that it would appear has been rigorously observed over a long period. As noble Lords would probably agree, whether voluntarily or by practice that does not require regulation or legislation, good practice can be developed and it is best left that way. That is my view but I shall leave the noble and learned Lord, Lord Wallace, to explain the detail.

My Lords, Clause 23 gives Scottish Ministers the power to license Scottish doctors to prescribe three controlled drugs—cocaine, diamorphine and dipipanone—for the treatment of addiction. The Calman commission recommended that responsibility for the licensing of controlled substances used in the treatment of addiction should be devolved to Scottish Ministers as part of their responsibility for health and well-being. The UK Government consider that Scottish Ministers are best placed to consider the particular circumstances in Scotland when deciding which doctors should have the authority to prescribe or administer the three controlled drugs used in the treatment of addiction. That relatively narrow devolution is set out in Clause 23.

I am grateful to my noble friend Lord Selkirk for his interest in this clause. As I have indicated, the Government certainly want to ensure that the Scottish Government have the necessary powers and abilities to tackle drug misuse effectively. That is why we have introduced Clause 23. However, it is perhaps important to indicate that while Scottish Ministers can consider the particular circumstances in Scotland when deciding which doctors based in Scotland should assume the responsibility to prescribe or administer specific drugs, they do so pursuant to regulations made under the Misuse of Drugs Act 1971 by the Secretary of State—the Home Secretary.

My noble friend’s amendment would require the Secretary of State to consult the appropriate persons before such regulations were made. The power to make regulations and the responsibility for the form of those regulations is reserved to the Secretary of State. The Secretary of State is already required by statute to consult the Advisory Council on the Misuse of Drugs before making regulations made under the 1971 Act. As a matter of good practice, the Secretary of State will consult key partners, and often the public, before implementing changes to regulations made under the 1971 Act. The Home Office has recently completed a three-month public consultation on proposed changes to, and the consolidation of, the Misuse of Drugs Regulations 2001. I am afraid that I cannot tell my noble friend Lord Maclennan whether NICE was consulted but, as I can ascertain, that would seem to be one of the bodies that might have been consulted. In the context of the consultation, officials from the department met their counterparts from the Scottish Government to discuss the proposals.

The Bill is devolving the licensing function to Scottish Ministers, and they will consult whoever they think appropriate while exercising that function to license doctors in Scotland. The making of the regulations remains reserved to the United Kingdom and the Home Secretary and I respectfully ask my noble friend to withdraw his amendment. I am sure that this point will have been noted by others, not just in the UK Government but by Ministers in the Scottish Government.

I thank my noble and learned friend Lord Wallace of Tankerness very much for his reassurances and I beg leave to withdraw the amendment.

My Lords, in moving Amendment 47, I shall speak also to Amendment 50 in this group. We are dealing here with two further areas in which the Calman commission has taken up the wishes of the Scottish Executive to exercise more power: the setting of drink-driving limits and the setting of speed limits. Amendment 47 amends the Road Transport Act 1988 and would provide for regulations made by Scottish Ministers on drink-driving limits to be referred to in the regulations made by the Secretary of State with regard to the driving test—which, presumably, should still be the same across the United Kingdom. The amendment was suggested by the Scottish Law Society, among others, and is more or less a tidying-up exercise.

I notice that some of the other amendments have been tabled by noble and learned Lords opposite, and I feel slightly in awe of such learned names as appear attached to them. My amendments are directed solely at the Road Transport Act. It is interesting that none of those noble and learned Lords has objected to the devolution of powers on drink-driving, but some of the amendments in the group concern the devolution of speeding. It will be interesting to see what is brought up on that front. Of course, any variation will immediately bring complications for both learner drivers and visitors. The reason for my amendment is that any regulations made by Scottish Ministers with regard to drink-driving limits should be made known to any person submitting himself to a test of competence to drive.

Amendment 50 would provide that any regulations made by Scottish Ministers with regard to traffic regulation on special roads, general provisions as to traffic signs and temporary speed limits would appear in the driving test in a similar way to the issues I raised under my previous amendment.

Section 38(2) of the Road Traffic Act, which lays down the provisions affecting the Highway Code, gives the Secretary of State sufficient powers on his own to carry out the changes proposed in the amendments tabled by the Opposition Front Bench. I should not have thought that all those details about the Highway Code need to be in the Bill. I have received a briefing that may have emanated from my noble and learned friend on the Front Bench which seems rather to agree with that; he may have a similar view, and I look forward to hearing what that is. I beg to move.

My Lords, I think it is in order for me to speak to Amendment 48, which is in this group, at this stage.

First, I must comment on the amendment moved by my noble friend the Duke of Montrose. There is much talk in Scotland about so-called devo-max, which those talking about it find it almost impossible to define. This seems to me to be pretty close to devo-max. I cannot for the life of me see why we need to have different speed limits or different rules relating to drink-driving between Scotland and England. That will create particular problems for people who live on the border and are driving on roads which do not follow the geographical border. This seems to me to be absolutely devo-max and devo-plus. These proposals have come about because all the parties got together in the Calman commission to try to prevent the nationalists winning a majority in the Scottish elections and thought about everything but the kitchen sink that they could throw into the Bill—which, as usual with legislation these days, was not given great scrutiny in the House of Commons. Here we are in the Lords, looking at this stuff now. The Highway Code and the rules for driving motor cars are complicated enough without there being different rules for different parts of the United Kingdom, which is just plain silly. However, it is in the Bill and the Government appear to be committed to it, so we have to deal with it as it is.

Having said that, I am extremely grateful that the Calman commission, on which a number of my noble friends served, did not in its enthusiasm decide that it should give the Scottish Parliament the right to decide which side of the road we should drive on—I do not know whether it was suggested; perhaps my noble friend Lord Selkirk of Douglas might be able to advise me on that. I make that point not just flippantly, because it is evident that the Bill as drafted gives the Scottish Parliament the power to decide the speed limit for motor cars but not that for HGV lorries. Had it been able to decide which side of the road to drive on, it could have been disastrous, because we would have had cars driving on one side and HGV lorries on the other, and we would have had a head-on collision.

I cannot for the life of me imagine why a Bill, which has been before Parliament now for nearly two years, has been through all its stages and been discussed by the Scottish Parliament, contains an anomaly whereby it makes provision for setting the speed limits for cars but not for HGVs. To give credit where credit is due, the parliamentary committee which looked at the Bill in the Scottish Parliament identified that anomaly. It is absurd that, at a time of great austerity and when local government has had its source of revenue through council tax frozen, we have a proposal that all road signs and speed limits should be able to be changed in Scotland but only in so far as they relate to motor cars but not HGVs.

I received a briefing for this Bill from the Whips’ Office whose contents I suppose I am not allowed to reveal because they are secret. It indicated that if I were to press the amendment my colleagues should resist it because, if we included HGVs as well as motor cars in the Bill, it would result in the road signs having to be changed. We would be in the absurd position where we would have to have road signs that related to the UK regulations for HGVs and road signs which were changed for motor cars, so we would have two sets of road signs. This is good news if you make road signs, but very bad news for the taxpayer.

My guess is that what has happened here is a typical intergovernmental dispute. I suspect that the Department for Transport is digging in its heels to maintain control over HGVs and the Scotland Office is saying, “Well, we’ve made this promise in Calman, so we’ll just leave it in the Bill and hope no one notices”. Amendment 48 establishes a principle which I am sure my noble and learned friend can happily accept because it certainly covers common sense, and I have pleasure in proposing it.

I do not disagree with my noble friend Lord Forsyth, but is it not true that the speed limit for HGVs is already low enough for the Scottish Executive not to wish to interfere with it? Is not their argument with private vehicles, which have a very much higher speed limit at the moment?

I do not have a clue, but whatever they think, Governments, as I well know, come and go, as do Ministers and Administrations. We are talking about the making of the law here and there should be consistency. It seems to me that when you are driving from London to Glasgow, the amount you are allowed to drink, what you are allowed to do in terms of the speed limit in a built-up area and what you are allowed to do on motorways and dual carriageways should be the same as they were when I learnt the Highway Code. The Highway Code should be clear to everybody and mucking about with it in this way is just plain daft. None the less, that is what we are doing. However, if you are going to give the Scottish Parliament the power to decide on a different speed limit, it seems a bit odd that it should apply not just to motorcars but to all classes of vehicles. That is a very simple point.

The noble Lord has made a very interesting point. Of course, if his second point about drink-driving is true, the penalty if you are done for drink-driving having had half a glass of wine is losing your licence. Therefore, if you have the half glass of wine in Scotland and your licence is taken off you in Scotland, does that mean that you cannot drive at all in England?

I guess it does, and that is another absurdity but this is what happens when, for political reasons, politicians start mucking around with the powers that relate to Parliaments. The end result is confusion where there should be clarity, and clarity is very important in this area. If there is a case for reducing the speed limit—I think that there is a case for doing so in built-up areas and for increasing it on motorways—it should be done in the United Kingdom as a whole. In all the time that I served as a Scottish Member of Parliament in the other place, nobody ever came to me and argued the case for having a different speed limit in Scotland. People would argue about the regulations that related to where 30 mph speed limits would be but there was no suggestion that there should be differences.

Because I am very constructive when it comes to the Scotland Bill, as my noble and learned friend knows, I am very happy to accept that a decision has been taken on this. However, if you are going to make changes to the law and to the ability to change the law in respect of speeding, drink-driving and so on, the penalties should match the crime, and we are not providing for the Scottish Parliament to be able to produce the whole package. In short, this is a bit of a muddle. I look forward to my noble and learned friend’s answer and to hearing a commitment that he will sort out the muddle in the way that this House is very good at doing.

My Lords, my name is added to Amendments 47 and 50. However, I should like to focus my thoughts in general on all the amendments in this group, which specifically, following my noble friend the Duke of Montrose, covers the devolvement of drink-driving test thresholds to Scottish Ministers and the decision on speed limits north of the border.

Within the Bill I am broadly supportive of passing decision-making to Scottish Ministers on major issues such as raising taxes. However—and this is where I agree with my noble friend Lord Forsyth of Drumlean —my initial reaction to the proposals for potentially different speed limits and alternative breath-test thresholds on either side of the Scottish border was that they were petty, insignificant and unnecessary. Above all, I felt that any such change north of the border must surely be change for change’s sake, with the Scots just wishing to be different and having an implicit mistrust of the English authorities to set correct limits for both.

I regard us as being one nation for these purposes. In case we had not noticed, there is a seamless border between Scotland and England, so any change would necessarily mean increased bureaucracy, together with, as has already been mentioned, changes in the Highway Code, and, in particular, signpost changes everywhere along the border from Gretna to Coldstream and beyond, leading to increased costs. Above all, it would be confusing for the motorist. It has already been pointed out that if, for example, someone driving north is stopped south of Carlisle and breathalysed, and is then let off because of the limit in England, and he then unfortunately gets caught again when he is stopped at Beattock Summit, he could be over the limit there—assuming there is a lower breath test limit north of the border. The moral of the story, of course, is that one should not drink and drive; but the fact of the matter is that we should keep it simple for motorists and it is a very confusing issue.

However, that was my initial reaction and I have come round to thinking more positively about the potential differences north and south of the border. In so doing, I decided to look at the Irish experience—that is, the differences in road laws north and south of the border. Again, it is a seamless border. There are, first of all, broadly similar speed limits, the major difference being that there are kilometres in the south and miles in the north. The implications for that are that drivers have actually got used to the changes and highway codes have been changed without too much bother. The main thing is that rental companies have had to be aware of the changes and have had to, over time, issue new guidelines. Some of their cars have dual kilometres/miles per hour on their speedometers.

When it comes to the breathalyser tests, there are differences between the Republic and Northern Ireland. At present, Northern Ireland is the same as the rest of the UK, which has a limit of 80 milligrams per 100 millilitres of blood: beyond that, you get caught. In October 2011, the Republic’s threshold was lowered to 50 milligrams per 100 millilitres of blood. In Northern Ireland, there is now talk of changing to the Republic’s levels. It is no bad thing, therefore, if Scotland also goes down this route, given devolved powers.

Why is this? It is because in Scotland, the road casualty rates, some of which inevitably result from drink-driving, are 34 per cent higher per head of population—both for fatalities and for serious injuries. We should bear this in mind. The Royal Society for the Prevention of Accidents fully supports a reduction in breath test limits. It says this is a chance for greater financial benefits for the nation as well as benefits in health and well-being.

I am most grateful to my noble friend, but is he not making an argument for the whole of the United Kingdom? Is not the difference in statistics between Scotland and England, which he has highlighted, an argument about enforcement rather than the level of the limit?

I take my noble friend’s point, which is a good one that should be discussed. It brings up the point about discussions going on north and south of the border concerning that issue. One point to make is that a recent survey highlighted the fact that 79 per cent of Scots were in favour of lowering the limit.

Finally, as has been mentioned, if Scottish Ministers did decide to change either speed limits or breath test levels north of the border, there need to be certain safeguards in place. For example, if an English driver commits a serious offence in Scotland, it is imperative that a disqualification remains in place when he returns home. There is form on this. In 1998, for example, there was an agreement of co-operation between the Republic of Ireland and 13 member states of the European Union over disqualification. I understand that there is also an agreement between Northern Ireland and Great Britain over such recognition. I think, on balance, that devolution of powers to Scottish Ministers on road safety matters is positive only if—as seems possible—there are safer roads.

My Lords, I just want to raise one little matter about the drafting of Amendments 48 and 49 tabled by the noble Lord, Lord Forsyth. Surely it would be better if the provisions to set penalties for drink-driving and for random breath-testing were put in Clause 24, which concerns drink-driving, rather than in Clause 25, which concerns speeding.

My Lords, where I disagree with my noble friend Lord Forsyth is in our attitude to devolution as a whole. I would sign up for what is called “devo-plus”. I define that as meaning the greatest amount of devolution consistent with common sense. When we come to debate financial issues I will say more about that, in the light of Prime Minister Cameron's recent utterances in Scotland. Given that we are likely to come back to the issue in future legislation, if we take a definition of “consistent with common sense”, I say with great respect to my colleagues who served on the Calman commission that I am not certain that different categories of air guns, different drink-driving limits or different speed limits are consistent with common sense, and we would do better to remove them altogether.

My noble friend referred to those who live on the border. When I was first elected to the Commons, my constituency boundary was the English/Scottish border. My nearest railway station is across the border. When I come to your Lordships' House by train, which I do from time to time, I have to travel across the border. Let us suppose, although it is unlikely, that the Scottish Government decided to keep the drink-driving limit higher than it is in England, and let us suppose that I repaired to that excellent institution, the Cross Keys Inn in Ettrickbridge, before setting out on my journey. I could then find myself within the law for the first part of my journey and then fall foul of the law for the second part. A much more likely scenario would be that I met my noble friend Lord Forsyth on the train going north and we had a meal and a convivial glass of wine. I could then be perfectly legal on leaving the station and suddenly illegal as I neared my home. This is not consistent with common sense. When we come to a future Scotland Bill, I hope that we might drop these issues and deal with more substantial devolution questions that are of greater interest to the Scottish people.

My Lords, as I listened to the debate I wondered whether my noble friends had driven through Europe. The exact problems they explained to the House are those that one gets in Europe. Last week I drove through three countries in about an hour and a half. In each of them there was a different speed limit. This was well signposted at the side of the road and I did not cause immense problems.

Is there not a proposal for harmonisation of speed limits and other matters in the European Union for precisely the reasons that the amendment ought to be supported? It goes with the European drift, which I thought my noble friend was very keen on.

My Lords, one of the countries was not in the EU.

My Lords, three amendments in this group—Amendment 47A, 47B and 50A—are in my name and those of my noble friends. I do not intend to speak to, or in due course move, Amendment 47B. Before I get to the meat of the amendments, perhaps I could make a general point about the Bill and the proposals from the Calman commission. The noble Lord, Lord Forsyth of Drumlean, said—I hope that I do not misquote him—that this was dreamed up by a group of politicians who got together to try to prevent an SNP victory. Perhaps I was slightly naive at the time, but I did not think that that was my task as a member of the Calman commission. I am looking at two of my fellow commissioners across the Chamber and I do not think that it was in their remit, either.

In relation to road traffic, we received and assessed evidence. I have just had a quick look at it. Much of it was received from the Association of Chief Police Officers in Scotland. It is true that we commented that it was unfortunate that we did not receive evidence from major motoring organisations representing a Great Britain-wide viewpoint. We took that into account when we reached the view that we did in relation to both drink-driving and speed limits.

I cannot think of an example—perhaps my noble friend Lord Steel could help me—but there are roads in the Borders which go in and out of Scotland and England as you drive along them. If there were differences in the drink-driving limits or the speed limits, would we have signs every 100 yards saying “Now it is 30” or “Now it is 20”, or would we have policemen sitting in a lay-by in England or Scotland, depending on which had the higher limit, and would we have great arguments in the courts as to which part of the road you were on?

My noble friend Lord Caithness, who has now left, talked about driving across Europe. We are not talking about driving across Europe; we are talking about country roads in the Borders. What is the utility that is being achieved here? The arguments that the noble Lord is making, with which I have some sympathy, are arguments about what the limits and rules should be; they are not actually arguments for it being different in different parts of the United Kingdom.

I am not familiar enough with the borders to say to what extent roads come in and out of Scotland and England. The picture the noble Lord seems to be painting is that every 100 yards it meanders over the border. Of course, I am aware that a river forms at least part of the border. I actually thought that there were more significant difficulties with Northern Ireland and the Republic. I remember reading stories about people having part of their house in the Republic and the other part in Northern Ireland. Of course, you would not drive through a house. Nevertheless, roads probably do meander more over there than they do between Scotland and England. I take the noble Lord’s point; clearly there may be times when there are issues with that. I should think that there will be a common-sense approach between police forces on both sides of the border, as there already is in relation to jurisdictional difficulties, wherever they might arise.

I may be able to help the noble and learned Lord. The road that I use to go to Berwick—and no doubt the noble Lord, Lord Steel, does the same—goes through a small village in Scotland, in which the speed limit is 40 mph. When you go into England, it is 30 mph. I happened to get caught going at 35 mph in the village of Wark, so there are differences at the moment on these roads.

I am obliged to the noble Lord for that information.

A number of issues are raised by these amendments as a whole. The first is one of road safety. That has already been raised in the amendment in the name of the noble Duke, the Duke of Montrose, and the noble Viscount, Lord Younger. It was also raised in the amendments that we have put down. There are two particular issues here. One relates to the Highway Code, the other to the driving test.

Paragraph 95 of the Highway Code says:

“You MUST NOT drive with a breath alcohol level higher than 35 microgrammes/100 millilitres of breath or a blood alcohol level of more than 80 milligrammes/100 millilitres of blood”.

It then tells you why you should not do that; alcohol will give,

“a false sense of confidence … reduce co-ordination and slow down reactions … affect judgement of speed, distance and risk”.

Paragraph 124 and the accompanying table in the Highway Code reflect the speed limits, and say:

“You MUST NOT exceed the maximum speed limits for the road and for your vehicle”.

It is of course clear that if Scottish Ministers exercise their powers under the Bill, and vary the limits in either case, that will have a knock-on consequence for the Highway Code and for the driving test. It is important to ensure that people are sufficiently aware of the differences where they exist. It is important that we do not have some kind of Scottish edition of the Highway Code that reflects only the Scottish position but have instead a code that is still a United Kingdom code but that reflects differences in these limits where they exist. On the speed limit, for example, the accompanying table could be quite simply amended to show these differences where they exist.

The Calman commission obviously missed a trick when we decided not to give the power to the Scottish Parliament to change the side on which the traffic moves. Driving on the left seemed to us to remain important.

The other issue raised by the noble Lord, Lord Forsyth, was HGVs. The Calman commission did not distinguish between different types of motor vehicles. I am unclear why that distinction is there and why it remains, and I certainly look forward to a good explanation, shall we say, from the noble Lord, of why that should be. It really does not make sense to have that kind of distinction. He may say that long-distance truck drivers are used to driving over the border, but that raises the question as to why we are devolving it at all. In fact, these very people are more likely to be aware of the differences where they exist. Therefore, if he were to advance that argument, it would not be an argument that I would accept.

The noble Lord, Lord Forsyth, also raised an important issue about penalties. The Calman commission simply looked at the offences and the limits on the blood alcohol and breath alcohol levels and the speed limit. I do not think that we mentioned penalties. However, there is an important point here. A reduction in the limit is more important when one talks about the alcohol limit. For example, there has been talk of a reduction to zero. If that happens, the penalty would be an automatic 12-month ban. Even someone with a minute level of alcohol would be subject to that automatic 12-month ban unless the Scottish Parliament had the power to vary not just the alcohol level but the penalty.

While this Bill devolves responsibility to the Scottish Ministers to set the blood alcohol level, that devolution might be constrained. Ministers might take the view that, while they are in favour of a reduction in the blood alcohol level, the penalties that would necessarily be imposed because they did not have the power to vary the penalty would mean that the penalty would be disproportionate.

Perhaps there is an issue about the ability to amend primary legislation, but this is a very real issue that the Minister has to take away and look at seriously. Otherwise, we would not properly devolve this matter at all and would be giving only one part of a solution to the Scottish Ministers. I hope that the Minister will reflect on that issue as well as on HGVs, and I look forward to hearing from him.

My Lords, perhaps the noble and learned Lord would explain to me what considerations he has in mind that justify the ability to set different blood alcohol levels north and south of the border. It seems to me that the people who live north and south of the border do not have greater sensitivities to these things. The purpose of the law is not to deal with the problem after the event but to prevent people driving with too much alcohol. The commonality of the law north and south of the border makes it clear to drivers what is acceptable. I cannot think that before they set off to cross the border, people are going to check precisely what milligram limits are acceptable on one side or the other. If there is any doubt about the limits of susceptibility, that ought to be discussed by doctors across the United Kingdom before the law is changed.

My Lords—

Perhaps I could first respond to the noble Lord’s intervention. I have to say with the greatest respect that I do not accept the proposition he is putting. In the first place, the number of cross-border journeys that are taken in relation to the entire number of journeys made in the UK is minuscule. Typically, people are caught drink driving over very short distances because they are driving home either from the pub or after having gone out for a meal. The noble Lord, Lord Steel, is not in his place, but let us say he goes from Ettrick over the border to catch his train, having enjoyed a good meal. Before he catches his train, he gets caught because over the border there is a different limit.

My Lords, will my noble and learned friend give way?

I will in a moment. The answer is that you should know what the limit is before you set out on your journey, and that should be the case for everyone.

There is another problem, if we take the example of the noble Lord, Lord Steel. If the noble Lord has a decent meal in the evening with a few drinks, and gets up the following morning and drives his car, he may then be stopped because increasingly, particularly in holiday periods, the police are stopping drivers early in the morning and breathalysing them. Of course, people are not aware of the dispersal rate of alcohol in their bodies.

The Highway Code is quite explicit: you should be aware of the amount you have drunk the night before. I had people around for a meal recently. They were not driving, but when I offered them another drink, they said that they could not take it because they would be driving the following morning. That is sufficient for me. With respect, I get the impression that people are more and more aware of both the drink-driving limits nationally and the necessity of ensuring that they do not drink in the evening if they are going to be driving the next day.

The noble and learned Lord is making one point. We have heard a great deal about the limits and the penalties. My noble friend Lord Caithness was driving in Europe and went through three countries. In many countries across the Channel, the limit may be 50 milligrams or thereabouts, but often the penalty is either what I would call a light rap over the knuckles or three months. But if the level is 80 or 100 milligrams, which is what we have, quite often it will be one year or even more. Ever since, I think, 1967, the level has been 80 milligrams and 12 months. If we are going to have lower limits as there are in some Scandinavian countries—in Finland, but not Sweden or Norway so far as I am aware, it is zero; I do not know what the penalties are, whether they fluctuate or vary—would my noble and learned friend the Minister put that into the frame when he comes to respond to this?

I do not think the real issue in respect of penalties is about proportionality but to do with the type of case we have heard about from the noble Lord, Lord Steel, and my noble friend Lord Maxton, of the person living one side of the border who finds himself on the other side and commits what is an offence on that side but not on the other side. The imposition of the penalty then affects him where he is resident—he would lose his licence for the whole of the United Kingdom although he has committed no crime in England. That sort of situation will not enjoy public confidence.

As the debate continues, it seems we are missing something. If I think back to my days in the law, we had a book called Road Traffic Offences, which dealt with the whole substance of road traffic law, which included regulations in respect of licensing and also of course the issue of penalties. Here, we are, in part, trying to add on to a United Kingdom Act—the Road Traffic Act 1988 in one case, and the Road Traffic Regulation Act 1984 in another—little bits that will apply only to Scotland and which devolve power to make certain changes in the whole structure of road traffic law in that way. As an individual who has to obey the law, I would find it very difficult to find where to go to in order to understand what my obligations are in driving. Leaving aside the issue about licensing and the like raised by the noble Lord, Lord Sewel, the United Kingdom licence is a licence to drive anywhere—yet we are asking individuals throughout the United Kingdom to have regard to regulations made by two separate bodies, each with their own responsibilities, which are giving rise to a whole series of different and very difficult questions that have already been brought to mind in this debate. I wonder whether—

Before the noble and learned Lord leaves that point about two different jurisdictions, can he perhaps clear up for me the difference in relation to corroboration between Scotland and England? As I understand it, at the moment, because we have UK traffic legislation, only one policeman is required to provide evidence in an arrest. However, were Scottish legislation to apply and there was a different alcohol or speed limit, would that be subject to a different form of corroboration, since it came from Scots law rather than UK law?

The noble Lord raises an interesting point. I would not wish to give any definitive opinion as it is a long time since I have had to deal with these matters. The noble and learned Lord, Lord Boyd, is probably better able to do so, as he has a more modern understanding of road traffic law as a recent Lord Advocate in Scotland. However, these questions arise over a whole series of issues apart from road traffic. We are getting into an area where I wonder whether the kind of devolving of powers that is being sought here is in fact creating more problems that it would do if the whole issue of road traffic legislation—instead of being under the Road Traffic Regulation Act 1984 or the Road Traffic Act 1988—were left as a separate Act that applies within the jurisdiction of the Scottish Parliament. That would be much clearer for members of the United Kingdom.

The noble and learned Lord threw me that one and I will just take it up. It is true that there are a whole range of United Kingdom statutes that nevertheless require different evidential standards on both sides of the border. There is the Misuse of Drugs Act, for example, where corroboration would be required in relation to those offences that were prosecuted in Scotland but not—I think I am right in saying—in England and Wales. The same, of course, is true of the Road Traffic Act. If I may say so, that possibly just reinforces the point that different jurisdictions will have different rules of evidence and in theory, or at least in principle, there is nothing to stop them having different penalties and limits for particular offences.

My Lords, I thank noble Lords who have taken part in this debate, which has given rise to a number of important issues. I share with the noble and learned Lord, Lord Boyd of Duncansby, his analysis of how the Calman commission went about its work. My noble friend the Duke of Montrose suggested that we were trying to deliver what the Scottish Executive wanted us to. If only the Scottish Executive had made any connection with the Calman commission—they studiously did not give us any evidence or indication of what they wished—their engagement might have been productive.

As the noble and learned Lord, Lord Boyd, indicated, this was done on the basis of evidence. It was recognised by the commission that there are already different speed limits; there are already powers to set speed limits on local authority roads devolved to local highway authorities through road traffic regulation orders. They are free to use their knowledge and assessment of local roads and may set different speed limits of 20, 30, 40, 50 or 60 miles per hour where they think it appropriate.

There was a view on drink-driving that it was part of criminal law, which is already devolved—but perhaps more importantly there are serious alcohol abuse issues in Scotland. I do not think that anyone is running away from them. The view was that this might be one other measure that could be part of how alcohol abuse could be tackled in Scotland.

Before we get on to some of the more specific issues on speeding and drink-driving, I shall take up the important points that have been raised by my noble friends the Duke of Montrose and Lord Younger as well as the noble and learned Lord, Lord Boyd, on the highway code and the driving test. The amendments to which they spoke seek to ensure that provisions of the highway code reflect the content of regulations made by the Scottish Ministers on speed limits and the drink-drive limit under the powers devolved to them in the Bill, assuming that those powers are actually used and changes made.

I fully agree that the highway code should reflect any changes made as a result of the powers being devolved, but it is important to note that there is no other legislation on the content of the code, either in the Road Traffic Act 1930 or in the supplementary provisions in Section 38 of the Road Traffic Act 1988. It would be disproportionate if the only specific statutory requirement on the content of the code were the few provisions in the Scotland Bill when there is no other such requirement to include any specific items of English, Scottish or Great Britain legislation. The code provides guidance, but it is not a comprehensive description of all road traffic legislation. However, I assure my noble friends that the mechanism exists to ensure that the highway code is accurately and adequately updated. It was referred to by my noble friend the Duke of Montrose that Section 38(2) of the 1988 Act gives the Secretary of State the power from time to time to revise the code by revoking, varying, amending or adding to the provisions in the code in such manner as he or she thinks fit.

Section 38(3) places the Secretary of State under a duty to lay proposed alterations to the code, other than those that are merely consequential on the passing of an amendment or repeal of provisions, before both Houses of Parliament at least 40 days before she proposes to make the changes.

Under Section 38(4), if the House resolves that the proposed alteration should not be made, the Secretary of State must not make the proposed revision to the code. Perhaps significantly, Section 38(5) of the 1988 Act states:

“Before revising the Highway Code … the Secretary of State must consult with such representative organisations as he thinks fit”.

That would include the Scottish Government as was the case during the last major revision in 2005 to 2007.

I am sorry, I am rather confused. Which Secretary of State are we talking about here? Is it the Secretary of State for Transport?

Yes.

So the proposition is that the duty lies on the Secretary of State for Transport to make amendments to the Highway Code, which may have been made by the Scottish Parliament.

Yes, it is the Secretary of State for Transport—I hope that I said “she”—and that would be the case. There are regular revisions of the Highway Code. As I might have said or was about to say, Scottish Ministers were consulted during the last revision and it is intended that they will continue to be consulted.

It would not be helpful to have two separate editions of the Highway Code. I think I am right in saying that one contributor to the debate strongly urged that we should not have a tartan edition of it as well. It was the noble and learned Lord, Lord Boyd of Duncansby. There should be one edition of the Highway Code, but of course it should reflect the differences that are there, and there is indeed a mechanism for doing that. The Government are therefore of the view that an amendment providing for an update to the Highway Code in the Scotland Bill is unnecessary.

Again, with regard to driving tests and the content of regulations, changes made to speed limits are somewhat parallel. Section 195 of the Road Traffic Act 1988 already requires consultation with representative organisations prior to making regulations relating to the driving test. This would include the Scottish Government. I understand the point that questions in the driving theory test about speed limits and drink-drive limits should reflect any new Scottish limits. As with the Highway Code, the driving theory test is regularly updated and significant changes to road traffic legislation can be included. Like the Highway Code, currently the content of the test is not a matter for legislation. To start adding specific requirements as to what the test must reflect, which may be subject to change in the future through primary legislation, would be inappropriate.

Nevertheless, I accept that important points have been made about driver awareness of any changes across the United Kingdom. To that end, I confirm that it is standard practice for the Scottish Government to be consulted when changes are proposed to the driving test. The theory elements of British driving assessments are already amended to reflect legal changes with substantial effects on what is covered in the assessments. I confirm that a change to the national road speed limit or the drink-drive limit, whether it were across the remainder of Great Britain after the transfer of power or in Scotland, would be such a change and would be reflected.

I have one small question. I take the point about local authorities imposing speed limits as they wish, but motorways of course come under the Highways Agency. If I am right, and if there is therefore a variation in a motorway speed limit, as there can be—there is, for instance, on the very good new M74 through Glasgow, where a 60 limit goes down to a 50 mile an hour limit—who imposes that? Who is consulted, and who is putting that speed limit on?

My Lords, motorway maintenance, for example, is certainly devolved to the Scottish Government. I rather suspect that the motorway speed limit is set under UK legislation. If I am wrong, I will either clarify it before the end of this debate or write to the noble Lord, either to confirm or to clarify. I certainly know that the maintenance of the motorway network is a responsibility of the Scottish Administration.

The amendment which noble Lords opposite also propose would require the Scottish Ministers and the Secretary of State to jointly make regulations governing the enforcement of the alcohol limit for driving if the limits in Scotland and England differ.

Before we leave the Highway Code, let us say that this legislation has gone ahead and, for the sake of argument, that the Scottish Parliament has decided to make the speed limit 60 miles an hour rather than 70. If I am a youngster taking my driving test in Hampshire and am asked what the speed limit is on country roads and I say, “70 miles an hour”, will I pass the test or do I have to say, “It is 70 miles an hour in England and 60 miles an hour in Scotland.”? Listening to him, I do not know how my noble and learned friend will answer that question. I would like to think that the answer is that you have to give both, but how will that youngster know that and what will the mechanism be by which this will be communicated?

I think the answer is that the noble Lord would fail the test, because in fact it is 60 miles an hour in England. It is 70 miles an hour only on motorways, not on country roads, so with all due respect he might actually have found that he failed the test regardless of whether the country road is in Scotland or England, but I take the more general point that he was making.

What is the answer?

The answer is that it would be in the Highway Code and the question would stipulate whether it meant the speed for motorways in Scotland or in England. These are not insuperable problems. This reminds me of the days of the Calman commission when some of these issues were being teased out. I thought that if, prior to the union between Scotland and England, there had been no difference in the law on marriage with consent and someone had suggested that in Scotland you could marry without your parents’ consent at 16, people like the noble Lord’s ancestors would have stood up and said, “What about Gretna Green? People will be flooding to Gretna Green to get married!”. Well, so they did, and the heavens did not fall in and the union stayed together; indeed, it has been very good for tourism in that part of the south of Scotland. You can pick up these little points and tease away at them, but they are not going to end the union. The union allows for these differences if they are thought proper and appropriate.

This is all very amusing, and I take the point that I should have said dual carriageways—motorways, rather—with regard to the speed limit, but amid all that bluster my noble and learned friend gave the answer: it would be in the Highway Code. How will it get into the Highway Code if my noble and learned friend does not accept these amendments? Are we relying on the Secretary of State for Transport finding out what is going on in the Scottish Parliament and communicating that? How will this be achieved?

My Lords, my noble friend is building a mountain out of a molehill. These matters are not exactly going to be slipped under the carpet. As I have indicated, Scottish Ministers were fully consulted in the most recent consultation on the revision of the Highway Code, and there is no reason to suggest that that would not happen again. Indeed, there might be even better reasons why that should happen if these powers are devolved. In the course of these debates my noble friend has put his finger on a number of important points, but I sometimes think that he is trying to make difficulties where in practice none would exist. A young person, or indeed an older person, who has not passed their driving test has to learn the Highway Code to take the theory test, and there are a whole host of questions to learn. Reserved matters change, and that is reflected subsequently in the Highway Code, but people are expected to be prepared for the test that they are about to sit.

I pick up my noble friend Lord Steel’s point on people crossing borders. My noble friend Lord Caithness said that he had driven through three countries in Europe where the speed limits changed. I recall driving through different states in the United States where speed limits changed. It was picked up that we are talking not about main roads—the M6 or the M74—but about country roads that could cross borders. I suspect that the same applies to boundaries in some other countries as well. There is certainly a boundary between the Republic of Ireland and Northern Ireland, and matters are resolved there, just as when you have local speed limits.

I can think of one particular local speed limit on the west side of Shetland. I never understood why there was a 40 mile an hour limit there, in the middle of what was otherwise a 60 mile an hour limit, but you observed it, or tried to, and then when you passed the de-restriction sign you went back up to 60. It did not actually cause any practical difficulties. You can have such a variety of speed limits in local areas and around schools in built-up areas. The limit could be 20 miles an hour, and it does not seem to cause any difficulties. People see what the speed limit is—there have to be signs—and they obey it.

There is a fundamental difference between comparing the Scotland/England situation with that of Northern Ireland and the Republic. They are different states; that is the important issue. I am still concerned about someone crossing the border committing an offence on one side that is not an offence on the other side but losing their licence on a UK basis.

My Lords, I give the example of the United States, which is one country where there are different speed limits in different states as you cross them. The noble Lord also mentioned licences. However, the point is that certain things are crimes in Scotland but not necessarily crimes in England. Just because you commit and are found guilty of a crime in Scotland, it is not a defence to say, “Ah, but in England I wouldn’t have committed a crime and, therefore, wouldn’t have been fined or gone to prison”. You must accept the law in the place where you are. If you go out to drink and drive, you should have regard to what the limits are. For the sake of argument, if the limit in Scotland was lower and you knew that you would be driving in Scotland, you should have proper regard to what the law is there.

As someone who was brought up some eight miles from the English border, when I was 18 we certainly knew the difference between the licensing hours in Gretna on the Scottish side and Longtown on the English side. In fact, there was a pub much closer, just across the border on the other side of the A74 from Gretna Green. Local people know what the different laws are on both sides of the border. As I say, if you are drinking and driving you should have proper regard to what the law is in the country in which you are driving.

Is the Minister’s position that if, as in the case that I cited, a person drives across the border and commits a crime in Scotland that is not a crime in England, it is perfectly understandable that, if the situation allowed, he should lose his licence in Scotland but not in England, where he has done nothing wrong?

My Lords, at the moment you could be in a position in which you gain penalty points, which could cumulatively lead to you losing your licence, because you have breached a 20 miles per hour speed limit set by a local authority. Just because a local authority in Hampshire would not necessarily have designated a 20 miles per hour limit for a similar area, that in no way means that the penalty points that you have accumulated for speeding—perhaps outside a school in Lanarkshire—should somehow be discounted. The point is that if the decision made by the Scottish Parliament was that the law should reflect the problem of alcohol abuse in Scotland, it follows that people are aware of the penalties.

I have listened carefully to what the Minister has said. He quite rightly said that there are signs to tell you whether the speed limit is 30, 40 or 50 miles per hour. I live in the borders as well and sometimes, to get from one part of the Scottish borders to another, I go through England. Is he suggesting that there should be signs to tell us what the drink driving limit is on both sides of the border?

I am suggesting that the noble Marquess, being a responsible citizen and knowing the circumstances, will know that the law is different in Scotland and England. After all, let us recall that the Scottish Parliament introduced a ban on smoking in public places well ahead of other parts of the United Kingdom, yet there appeared to be no problem with visitors to Scotland not knowing that the ban existed in Scotland, albeit that at the same time it did not exist in England. These matters will not be dealt with clandestinely. You can bet your life that if the change is made it will be well broadcast. Indeed, as my noble friend Lord Younger indicated, a change was made in the Republic of Ireland that was well known. I am sure it was well known throughout the island of Ireland. Living in Scotland and working in London, I was certainly conscious that that particular change had been made.

On the question of penalties, there is of course no maximum limit to a disqualification. These matters are best taken into account by the court. I hear what the noble and learned Lord says about the minimum disqualification period, especially if it were to apply in the event of there ever being zero tolerance of alcohol. He makes a point that I certainly wish to reflect on because it is a different point. If there is a maximum limit, no special arrangements need to be made as it is properly a matter for the court to take into account when determining the circumstances of any given offence.

My Lords, I thank all those who have participated in the debate. As noble Lords are aware, we have explored many avenues, although possibly not all, that could be exhausted on this topic. The noble and learned Lord, Lord Boyd of Duncansby, mentioned the main themes that have run through the debate such as road safety and which side of the road we drive on. However, it seems to me that if the alcohol driving limit is reduced to zero, using certain brands of cough mixture might get one into trouble.

I was grateful to my noble and learned friend the Minister for addressing my proposed amendments to the Road Traffic Act 1988. I purposely avoided tabling amendments to do with the Highway Code. It seems to me much more important at least to get the matter clear for people sitting the driving test. I shall read my noble and learned friend’s response, which was very detailed as this matter requires a detailed response. We have all been trying to avoid muddle. That theme seems to run through this group of amendments. My amendments do not seek to gainsay the recommendations of the Calman commission, but it seems to me that if any of these amendments are accepted, the two amendments standing in my name would need to be accepted also to avoid muddle.

My Lords, I am most grateful to my noble and learned friend Lord Wallace, who did a formidable job of making bricks without straw. I am very disappointed that he did not tell us the Department for Transport’s arguments for having different speed limits for cars and lorries. Despite all the towns and byways that he mentioned on which separate speed limits apply, I am not aware of any town or community in Scotland that can set a speed limit for lorries as well as cars, which is what is proposed in the Bill.

I am most grateful for the assurance that my noble and learned friend will look at this. I take it from what he said that he is also looking at my Amendment 49 on penalties. I shall certainly be happy not to press my amendments and I entirely agree with my noble friend the Duke of Montrose that his amendments are also worthy of further consideration.

My Lords, I beg leave to withdraw the amendment.

My Lords, we suddenly seemed to be making rapid progress there, so we should now take a little time to contemplate an interesting issue before we get on to the important matters of finance that I am glad to see the noble Lord, Lord Sassoon, is here to deal with. Perhaps I may give him advance notice that under one particular item, I might feel it necessary to raise the issue of whether or not the problems that Rangers Football Club currently faces would have been affected in any way if these changes to the law in Scotland had been implemented by now. That is a matter for later in our discussions, but I thought it might be helpful if I intimated that to him now.

Some of my more fainthearted friends, whom I will not name, advised me to withdraw the amendment; they thought it went a little too far. I must confess that it is not the most felicitous of amendments that I have drafted during the course of this Committee stage. My friends and colleagues, anxious for my well-being, warned me against a possible cybernat offensive if I moved the amendment. Perhaps I may tell them that that offensive has already taken place just by the very fact of tabling the amendment. I must say that if the provisions for ageism had already been brought in by the Government opposite—and they have not yet been implemented—some of the remarks could have been actionable. That is not to mention some of the other things that were said.

Perhaps I may therefore take this opportunity to remind people outwith Parliament of the purpose of the Committee stage of a Bill, which, as I understand it, is for the tabling of amendments—not necessarily to move them and vote on them—to provide debates around particular issues. We have had probing amendments, amendments put forward for debate and withdrawn, and amendments that have not been moved. That is the right thing that should happen.

I want to make three preliminary points on this amendment. I have tabled other amendments, which I intend to withdraw, putting “Devolved” in front of “Government” in every part of the Bill—the “Devolved Government”. The reason I tabled those amendments was to have an opportunity to debate the difference between devolution and independence—there is a complete difference. Some people try to conflate them—the nationalists, Salmond in particular, try to conflate it for their political purposes—but there is a major, substantive difference, a complete difference. It does not matter how much devolution we have, we still remain part of the United Kingdom. Sovereignty is still with the United Kingdom. Once Scotland makes the crucial decision to become independent, it is irrevocable. We would no longer be part of the United Kingdom. That is a major change, and we need to keep reminding people beyond this Chamber of that.

That is my first preliminary point. The second is that we need to get our courage. I am very glad to have seen the recent launch, reported in the Scotsman today, of the rainbow coalition between the different parties in Scotland. It is about time that the unionists, the federalists and the devolutionists got together. Incidentally, I should like to hear more from the federalists—traditionally, the Liberal Democrats—about the federal solution, which, as I have said before, is, in my view, the long-term stable solution for the constitution of the United Kingdom.

I am slightly fed up with the accusation from some of the nationalists that it is somehow wrong if we join forces with the Liberal Democrats and the Conservatives in a joint campaign—the phrase “the toxic Tories” has been used deliberately. There is a smear campaign to try to divide us; that is the purpose. I disagree with the Tories on 99 per cent of what they do, but even a Tory is not wrong always. They can be right from time to time, and when they are right, we should embrace them, work with them and encompass them in our activity.

My Lords, is not new Labour a monument to that principle?

I did not hear that; my noble friend Lord Maxton was talking.

I said: is not new Labour a monument to that principle?

It is a monument? That is a good question for a start. That has implications in itself. As my former Secretary of State will recall, I was always asked if I was new Labour or old Labour and I used to say, “slightly shop-soiled Labour”.

Salmond and the nationalists relied on Annabel Goldie and her Tory group for support for their budget every year for the four years when I was in the Scottish Parliament. They did not see it as wrong to have that kind of coalition. Let us work together where we agree with each other and let us not to be ashamed of it.

Ten minutes!

They were my preliminary remarks.

Before the noble Lord moves on, would he suggest that the First Minister might take over the Scottish rugby team as coach?

Well, he tried to get on television to talk about rugby, purporting to be an expert on it, and blamed the BBC for withdrawing his invitation. In fact, the BBC did not invite him; he invited himself and then the BBC said, “We don’t have a place for you, we’re afraid, because we’ve got people who actually know about rugby to talk about it”. It would be better to have someone who knows about rugby to manage the Scotland rugby team, but I have no doubt that the First Minister would think that he could do it.

I return to the amendment. When I was a Minister in the Department for International Development, I travelled the world, inevitably. It was part of my responsibility to go to the poorer countries of the world to see the problems and what we could do about them.

Just for the sake of facts, I should point out that my noble friend travelled the world before he became a Minister. [Laughter.]

That is a bit unfair.

I thought that the noble Lord, Lord Martin, was a friend of mine—I shall see him afterwards. But he is absolutely right. That was because I was an opposition spokesman on foreign affairs, defence and international development for 13 years.

It is important for the purpose of the argument and for this amendment to deal with when I was a Minister representing Her Majesty's Government. Even then, my private secretary had to submit proposals for travel. It was co-ordinated by the Foreign Office and there was some logic in that. But for three Ministers from different departments suddenly to turn up in the same capital at the same time, with each not knowing that the other would be there, could cause chaos and make us look inefficient and stupid. There needs to be some co-ordination; it is a practical matter.

Of course, the First Minister thinks that he is too grand. He thinks that he can do whatever he likes because he wants to pretend that Scotland is effectively independent at the moment and, therefore, there is no accountability to the United Kingdom Government for anything. At the very least, he should consult the Foreign Office before he and other Ministers go overseas to make sure that there is not a clash.

I am grateful to my “noble friend” for giving way. Does he think that if his amendment had been in place it might have beneficially affected the understanding of the al-Megrahi case?

That is a very interesting point. I had not thought about it. It needs some time to be thought about. Perhaps, by the time we get to the end of this debate, my former honourable friend could answer his own question, because he is a barrister and has more understanding and knowledge of these matters than me.

At the very least, I accept the suggestion of my noble friend Lord Browne—I shall name him now—that perhaps my amendment has gone a little too far by proposing that Scottish Ministers should get the approval of the UK Government, but at least they should consult them. At least, the Foreign Office should know when Scottish Ministers go overseas and give them help. After all, I found that the Foreign Office could give even Ministers in the Department for International Development advice, guidance and help in relation to our travel overseas.

I worry about the pretence of independence. It was the noble Lord, Lord Steel of Aikwood, who said that Scotland is in danger of sleepwalking into separation and he is absolutely right. We in this House get attacked as old fogeys—all this ageism—and as being non-elected. It does not matter that, for 40 years, I was an elected member either as a councillor, an MP or an MSP—they have forgotten all about that—but now, in here, we have no right, according to some of the cybernats, to talk about it. Perhaps we do not have a right in that sense, but we have a responsibility to warn people about sleepwalking into separation. The pretence that there is no difference between devolution and independence, that we are effectively already there and just have to take that little further step, is not helpful.

I urge us all in this argument—I have used just one example—to be bold. We should not be defensive about this union. This has been the most successful political and economic union anywhere in the world and we should be proud of it.

My Lords, the amendment of noble Lord, Lord Foulkes, says,

“obtain consent to the discussions from a Minister of the Crown”.

Should he not be specific about which Minister? Would it not be better to say the Secretary of State for Foreign Affairs?

The noble Lady, Lady Saltoun of Abernethy, is absolutely right. The amendment was written rather hastily. It could benefit from that redrafting and it could benefit from the redrafting that my noble friend Lord Browne suggested to me privately—it is not private anymore, I know. If we were to discuss it further on Report and I was to table it again, it would certainly incorporate changes of that kind.

My Lords, perhaps I may marginally disagree with my noble friend’s answer to the noble Lady. There may very well be different Ministers for different occasions. If, for instance, we were dealing with fishing and the Scottish Minister wanted to travel as part of a delegation or whatever, it might be different. It would not necessarily be the Foreign Office he would be dealing with; it might be the Minister for Agriculture and Fisheries. Therefore, my noble friend may very well be right in proposing the words “Minister of the Crown”, because it could depend on which function was being undertaken.

My Lords, it was not my intention to intervene on this amendment but I could not quite resist it. On a couple of occasions this afternoon I have felt great sympathy for my namesake, Alice Liddell, who wandered through the looking glass, particularly when we were discussing the variation in speed limits on border roads. However, I began to feel that too when listening to some of the remarks of my noble friend Lord Foulkes—not least his point about Rangers Football Club. I think I shall try to make a point of being elsewhere when we come to that bit of the debate.

However, there is a serious point behind what my noble friend has alluded to in his amendment, although I am glad that he has drawn attention to the fact that its wording might not be as effective as it might be. Despite the enormous elephant in the room of the debate in Scotland about the future of secession or separation, we have to remember that this legislation is about the operation of Scotland within a devolved arrangement—in other words, within the United Kingdom. There is an important point about the consistency of foreign policy and how that foreign policy is articulated in other parts of the world.

I have been at the receiving end of Scottish Ministers popping up in other parts of the world and, frankly, it is a matter of walking on eggs. There are some very serious issues confronting us at the moment, not least in relation to Syria. We have just seen the difficulties in Libya and we also have to bear in mind that it was Mr Salmond who called the intervention in Kosovo an act of “unpardonable folly”. That kind of mixed message on British foreign policy does not help anyone, particularly those who are in international delegations seeking to convince the world to go in a particular direction. It would be a sign of the maturity of the devolved settlement if the Scottish Government were prepared to enter into a mature debate with the Foreign Office over areas where there are issues of interest in relation to foreign affairs. The Scottish Government, particularly under my noble friend Lord McConnell, have done a considerable amount in Malawi. That is an excellent example of intervention, particularly given Scotland’s history in relation to Malawi and the very strong ties between Scotland—particularly the University of Glasgow—and Malawi. These initiatives are of great value, but freelance activity is not helpful to the dissemination of British foreign policy.

I am hoping from the tenor of what my noble friend has said that it is his intention to withdraw the amendment. However, I do not think that the sentiment should be completely lost that there is a sound reason for a degree of co-ordination and, indeed, for a co-ordinated foreign policy. Every one of us in this place and in the House of Commons who travels abroad representing Parliament has a self-denying ordinance not to criticise our Government or our country. It would be quite helpful if some of the devolved Administrations within this country also acknowledged that convention.

I say to the noble Lord, Lord Foulkes, that I was only kidding, so I hope he does not go after me following this debate. I remember when we, including the noble Lord, Lord Maxton, entered the other place when we were freshly elected. When the rest of us were having difficulty finding our way around this big Palace of Westminster with all its nooks and crannies, the noble Lord managed to get to the Falkland Islands at just about the same time as the commandos. Therefore, travel has been part of his parliamentary life.

I think that we have to be careful. I do not canvass any more because I am a Cross-Bencher but I am already hearing from reliable sources that people on the doorstep are getting concerned about what Alex Salmond is saying he wants for Scotland. For example, Faslane is in my previous constituency, in which I was mainly brought up. There are a lot of employees at Faslane from Springburn, the Robroyston area and Bishopbriggs, where I live at the moment, and they are expressing concern about the possible closure of that facility. Therefore, men and women are talking about the First Minister’s grand ideas. However, the worst thing we can do is to attack the First Minister or anyone else on a personal basis. I agree with Johann Lamont, who said, “I will share a platform with anyone who is willing to fight for the United Kingdom and support the Scottish Parliament”. That is the road that we should be going down.

I am glad that this amendment is going to be withdrawn by the noble Lord, Lord Foulkes. We would be kidding ourselves if we expected the First Minister and the senior members of the Executive in a Scottish Parliament, who have certain rights that the United Kingdom Parliament gave them, to go almost cap in hand to a Minister of the Crown to get permission—I think the term is “consent” but the meaning is the same—to go abroad and speak to officials. We have to be realistic. We have all-party groups. There has been concern in both Houses that four or five people can gather under one roof and say that they are an all-party group. We have all-party groups covering subjects such as horse-racing, dog-racing and many other things, but many of them are linked with a country. That reminds me that I had better declare an interest as a member of the British-Italian group—something of which I am proud. It would be strange if the First Minister of Scotland had to get consent from a Minister of the Crown, yet the All-Party British-Italian Parliamentary Group could send a delegation to Italy or go to see the ambassador, who is the official representative of Italy’s Government in London.

It should also be remembered that there have been devolved Parliaments in Canada for many years. In fact, the constitution of Canada was held by both Houses only recently. However, no one would deny the right of the representatives of the Canadian provincial Governments—if that is the right description—or indeed the Speakers from those Governments to visit their opposite numbers here without going to Ottawa and saying to the Prime Minister or the appropriate Minister of the Crown, “We want to go to the United Kingdom”. They would not dream of doing that. The same would apply to Australia.

Therefore, although many of us disagree with what the First Minister is saying, there is a danger of us saying to Scottish Ministers that we are putting shackles on them before they can go anywhere abroad, yet any of our number in this House or the other House, or jointly, can go without asking anyone’s permission. There was a joke about a Member of Parliament who had a habit of travelling, and when the students were getting arrested in Tiananmen Square in front of the tanks, so did that Member of Parliament. His constituents did not say, “What was he doing in Tiananmen Square? He should have been here in Liverpool or in Westminster”. I make that point not to attack that Member of Parliament, who is dead—God rest his soul.

I make the point that if one person in this House or another place can take it upon himself to go to a country abroad and no one would say a word about them doing so, why are we going to put that pressure on the properly elected representatives in the Scottish Parliament? I hear parliamentarians saying that the Executive is too powerful. It rolls off the tongue. I know the amendment is going to be dropped, but if we bear in mind that this amendment belongs to the House, why is the noble Lord, Lord Foulkes, saying he is going to drop it? It is the property of this House. If we pass this amendment, we would be giving an awesome power to Ministers of the Crown, who we often say have too much power as it is.

I am very grateful to the noble Lord for moving this amendment because it has enabled there to be a discussion about the potential role of devolved government in the protection of interests in overseas discussions. I very much agree with what the noble Baroness, Lady Liddell of Coatdyke, said. I cannot believe that it is helpful, in seeking agreement across borders on issues that might affect us, for British representatives to be unable to speak with one voice at the official negotiating level.

The proper time for those discussions is prior to the engagement in the international debate. It is not meant to put a ban on representation by individuals who have some democratic authority. The amendment may well be defective in that respect, as the noble Lord has recognised. However, let us consider the situation in reverse. If we, as a British Government, were under the impression that we had to deal not just with the Spanish Government on fisheries policy but with a Catalan Government as well, it would hugely complicate our negotiations. I am bound to say that so long as the nation state remains, we should be dealing internationally and not with devolved Governments.

The representation of points of view is quite a different matter. It would have been helpful—to answer the question that was thrown back at me—if there had been a full dialogue between the Scottish Government and the United Kingdom Government about the al-Megrahi case. I am not sure that there was not, in fact, such a dialogue; it as remained rather obscure, but it is certainly important to Britain’s position vis-à-vis some of our allies that we were not thought to be in complete ignorance of the Scottish Government’s position. It led to some deterioration of understanding between the United States and the United Kingdom that there was no absolute clarity about who was essentially to take responsibility for the release and return of al-Megrahi to his homeland.

I will make one or two remarks as a non-Scottish person, although the purpose of this amendment in part appears to be to give the Scottish National Party a good kicking. That is a very desirable objective in many ways. Coming from Wales, I am very glad that we do not have a party with the bitter Anglophobia that is frequently revealed by the Scottish National Party. In Wales, we concentrate on other things, such as beating other countries at rugby and speaking our own language.

In wishing to criticise the Scottish National Party, I am very much in sympathy with what the noble Lord, Lord Maclennan, has just said. We must be careful not to give the impression of imposing a uniform pattern on the ongoing process of devolution. It is about difference; it is about differentiation; it is about pluralism—and it is very difficult to impose any kind of check on that. I recall that Mr Gladstone famously said, “You cannot put a stop to the onward march of a nation”. That can apply to nations within the British Isles as well.

The question was raised by various noble Lords about what kind of foreign representations we were proposing to monitor or have Foreign Office checks on. There are already, of course, as other noble Lords have said, enormous ranges of foreign contacts, particularly with the European Union. It would be very difficult to distinguish between foreign contacts that needed control from Big Brother at Westminster and other kinds of contact where that was not appropriate. The real point is that there is a kind of mistaken assumption that a devolved Scottish Government—whether it be devo-max or even going beyond that, if that actually took effect—would somehow impinge on the sovereignty of the British Parliament.

The word “sovereignty” was used by my noble friend. Views of sovereignty have moved on a great deal since it was brandished by Dicey at the end of the 19th century as a kind of inalienable set of powers that, if they were diminished, would inevitably disappear. There are all sorts of ways in which the sovereignty of this Parliament is fundamentally affected and transformed. At the present time, human rights legislation has done that, our contact with Europe has done that, and devolution has certainly done that. In the famous phrase, this is a process and not an ongoing policy that comes to an end.

If you look at the concept of sovereignty within the context of some other countries, you have a very different view of sovereignty. It emerges as a much more flexible concept; it is not like a cake that you take a piece out of and that piece never reappears. Look at the länder of Germany, which pursue an enormous range of contacts on industrial, economic, agricultural and social matters with other countries, enormously to their success. It has been a feature of the success of Germany, particularly the länder such as Baden-Württemberg, that their economic prospects have flourished because they have been allowed to be independent in this way and not controlled by a central Government. This is the purpose of devolution, and I think this is more likely to be about the success of devolution than about differentiation. In wishing to criticise the severity and extremism of the Scottish National Party, we must be careful that the extended implications of devolution are not criticised as well, because they are enormously valuable for the well-being of our country.

My Lords, I have two brief points to make. I very much agree with what the noble Baroness, Lady Liddell, had to say on these matters and I will not repeat the arguments. I would just like to pick up the point made by my noble friend Lord Maclennan. One of the big low points in my political life was seeing the saltires flying in Libya when al-Megrahi landed there. The noble Lord, Lord Foulkes, has been kind enough to say that perhaps his amendment is not the most felicitously drafted. Its substance, however, is that Ministers in the Scottish Parliament can of course make representations and meet delegations and travel abroad, but they should not pursue an independent foreign policy.

Until now, we have enjoyed a Civil Service that has kept Ministers in check and within the bounds of their responsibilities. I say with regret that there is a certain amount of evidence that that is not happening in Scotland at the moment. The Scottish National Party is perfectly entitled to have a policy that states that Scotland should withdraw from NATO. Why it has that policy, I do not know; everyone else is queuing up to join NATO. However, it is not entitled to advance and advocate the policy within the confines of the devolved Parliament, because foreign and defence policies are not the business of that Parliament.

My Lords, I will privately reveal that I have not been briefed by the noble Lord, Lord Browne of Ladyton, on why the amendment goes too far; I worked it out for myself. The idea of seeking consent seems to be a little insulting. Co-ordination is what we are talking about. The idea of writing into law a requirement for co-ordination seems very odd. I admit that the Foreign Office that I worked in completely failed to co-ordinate the travel plans of Ministers of both political persuasions. It is very difficult for the Foreign Office to attempt the task, and it is universally ignored by the rest of Whitehall. The person who can achieve the task is the ambassador who is lucky enough to have a couple of ministerial visitors. If he tells A or A’s office that B will be in the House at a certain time, A will decide that his plans require him to come at another time. In my experience, the collegiate atmosphere of any British Government has meant that it is perfectly easy to separate visits one from another. Therefore, this is unnecessary.

The innuendo was made that the Scottish nationalists are going around arguing with other NATO Governments against NATO. I have not seen any evidence of that. I would be surprised if it were true.

Perhaps the noble Lord would care to read the Scottish nationalists’ manifesto.

Yes, but the innuendo today was that they must not be allowed to talk to foreign Governments because they would try to persuade them in some way to leave NATO. That is a big jump. Of course it is in the Scottish National Party manifesto; we have all read it. However, again in this debate, I have been worried by the splendid attack of the noble Lord, Lord Foulkes. He said that he is up for the fight. It is easy to have this kind of fight when the opponent is not in the ring. We ought to be careful about insulting somebody who is not here. I am happy to be insulted because I am here. However, the fight should be conducted out there on the hustings. Here, we should try to avoid insult and innuendo.

To be fair—and not even to be fair—the fact is that the Scottish nationalists are not here through their choice, not through the choice of the House. If they wanted to be here, putting their case, they could be—instead of relying on the one Welsh nationalist in the House.

It may well be true that it is their choice. If so, it is a great mistake. I hope it is the view of all in this House that it would be very good if they were here. While they are not here, we should try to avoid insult. It does not do us any good when our debates are reported in Scotland.

I did not say anything that was insulting, and I do not do innuendo. I am quite direct. I said that the First Minister should not use his position to make the case against Britain being in NATO. There is nothing insulting about that. Nor is it an innuendo. Equally, the First Minister, who is paid from my taxes, should not go around the world arguing against our nuclear deterrent. He should concentrate on his duties as First Minister. There is nothing insulting about that, and there is no innuendo.

I am sorry but I am not aware that the First Minister is going around the world arguing that people should leave NATO or that Britain should leave NATO. I am sure that he is saying that, if elected, he would choose to leave NATO. The innuendo is the implication that he is undercutting the policy of the British Government policy by saying that Britain should leave NATO. I do not think that he is doing that. I do not know what he is doing; he does not have somebody here to tell us, which is a pity.

I intervened on the amendment to ask the Minister whether there has been any proposal from the Scottish National Party for the inclusion in the Scotland Bill at this point—because Clause 27 is where it would fit—of a provision that would clarify or increase the role that it should play in EU negotiations, in the delegation that comes from these islands or in the preparation of the positions that the delegation will advance. I ask that because I do not know the answer. Last summer, as I recall, the Scottish Government indicated that they wanted something of the sort. I do not know what they want. I would like to see the proposal, if it is around. Are the Government sitting on a suggestion from Edinburgh that has not found its place in the Bill because they did not agree with it? If the Scots came forward with something at this stage, would the Government insert a clause in the Bill?

It is worth addressing the question of whether, as you give a bit more devolution, you should give a larger role in the preparation of a position for certain councils. I do not know whether that would extend to the presence of a representative such as a Minister from the Scottish Government in the ministerial team. I remember days when that was the case. When we first joined the EU in the 1970s, we were always represented in the Fisheries Council by a Minister from the Ministry of Agriculture, Fisheries and Food, and by a Minister from the Scottish Office, operating in tandem. I will not comment on whether that was a good arrangement. The noble Lord, Lord Williamson, will have a better memory of it than I.

The German Länder are represented in the back row of many councils that deal with domestic affairs; they do not have a speaking part. I would not recommend that anybody look at Belgium, but if we do, we see that in many councils the Walloon and Flemish Ministers attend alternate meetings. That is ideal for those negotiating from a different point of view from that of the Belgian Government, because it means that the Minister never knows what happened in the previous council and it is possible to score some runs at his expense.

When devolution happened, a concordat was prepared in London and negotiated with Edinburgh that laid down detailed rules on what kind of issues the Scots should be consulted on in full. I do not know how well that has worked; I have been away. If it is not working well, it could be looked at again; there is no issue of principle there. As we devolve a little more, maybe we ought to devolve a slightly bigger role in the preparation of such things.

These are my questions for the Minister. Has anybody asked? Has anybody specified what is wanted? What would the Government’s attitude be?

I was a Minister who attended the Agriculture and Fisheries Council in the 1970s, although I did not belong to the Ministry of Agriculture; I was representing the consumer interest. I recall a number of Ministers coming to these councils but they all belonged to the same Government. Prior to our participation in these debates, we had clarified what our objectives were in common and we did not seek to confuse the other members of the council by putting forward entirely different points of view. That is the risk of having people who are seeking to separate one part of the United Kingdom from another.

The noble Lord has inquired of my noble and learned friend as to the Government’s position. It would be very interesting to know what he considers should be the position.

I draw a distinction between the situation with a degree of devolved authority—maybe a little more if this Scotland Bill becomes law—and the position of an independent Scotland. That is a totally different question. I would think it extremely unlikely that a delegation consisting of representatives of the London Government and the Edinburgh Government negotiating in Brussels in a situation of devolution but not independence for Scotland could not work out in advance and in private what was the best line and who would make which point. I do not think it very likely that the representatives from Edinburgh would see it as their task to undercut the United Kingdom interest because that would—while devolution persists—also undercut the Scottish interest.

One of the difficulties in relation to Europe and getting a common view—almost parity between UK Ministers and Scottish Ministers—would be around fisheries policy. The position of the SNP Administration in Scotland is that—and God knows how it can be done; I do not think it can—Scotland would leave the common fisheries policy. That creates a totally different negotiating framework in that policy area from a Government who say, “We are staying in but we have to reform and modify the common fisheries policy”.

My Lords, as I attended 108 meetings of the Agriculture and Fisheries Council I must just very briefly intervene. Of course, it was very common in the council that a Minister from the Scottish Office—a Scottish member of the UK Government—led for the United Kingdom. This was quite right, because of the huge fishing interest of Scotland. That was perfectly reasonable. I do not remember any case where there was anything complicated about that.

I should add that some other member states did something quite different. For example, a representative of the regional government in Belgium spoke for Belgium on a number of occasions, and I think on one or two occasions a representative from a German Länd spoke for the German delegation in the council. That was not the British position but the position of two other member states.

Before the noble Lord sits down, perhaps I may point out that indeed that has happened: a Member of the Scottish Parliament has represented and has led for the United Kingdom at a European committee. Therefore, the pattern that the noble Lord has described is unusual but it has happened.

My Lords, I apologise profusely to the noble Lord, Lord Foulkes, for missing the opening of the debate. I was quite distraught, actually. There was a ministerial meeting on another matter. I had looked forward to being here for this debate.

I only rise because my name was mentioned and my presence here without opening my mouth would be looked at askance. I do not want to go into the fighting with regard to the profile taken by the SNP Government; I want to follow the question of when it is legitimate for a devolved Government to try to have their own voice. Clearly there are opportunities to deal with other countries—for example, in education, in getting students from other countries to come to your universities—where the circumstances may be different in Scotland or Wales, and those opportunities can be taken. Likewise, with regard to industrial development, Wales did very well indeed in combining with the motor regions, including Baden-Württemberg, and there is industrial benefit to be had from the bilateral relationships.

Sometimes it can get a little bit more complicated. The former First Minister of Wales, Rhodri Morgan, led a delegation to Patagonia, where there is of course a Welsh community. The interests of the Welsh community in Patagonia, if one considers them in the context of some recent developments, may not be exactly the same as the interests perceived in this Chamber. Therefore, a balance has to be struck. I do not think that anyone would say for a moment that the First Minister of Wales should not have those links with Patagonia; it is a question of how the thing is then undertaken.

We have also seen it working the other way round. Because of the existence of the National Assembly—and I suspect this is true in Scotland with the Scottish Parliament—there are opportunities for people coming from overseas to link up with people with whom they can do business on a bilateral basis. That is not a problem at all in terms of the UK.

The last two or three contributions have touched on the European Union, and that of course is where problems can arise. In Wales we have had the opportunity to lead the UK delegation from the National Assembly in matters such as the sheep-meat regime, which was led by Elin Jones, the Minister for Rural Affairs; Wales has also led in minority-language meetings. There are opportunities like that. However, the problem arises—and we do not do ourselves any favours if we hide away from it—that there will be some circumstances where the interests of Scotland or Wales may not be identical to the interests, as perceived from London, of the UK as a whole. Fisheries may be one; I am not close enough to that to know. Colleagues from Scotland are much closer to that.

It may be that even on party-political balances—we in Wales have a Labour Government now; there is a Conservative-Liberal Democrat Government here—the perception will be different and the profile that people want to project to the outside world may be different because of that. The question is: how can the line be drawn within a devolved settlement that is reasonable in all circumstances? That is what we need to address, to get the balance right there, rather than perhaps fearing that the thing can go to an extreme that causes difficulties for all concerned.

My Lords—

I can quite understand the noble and learned Lord’s wish to progress matters.

I am not entirely clear where to start. The amendment before this House is that:

“Before commencing discussions with representatives of foreign governments or inter-governmental organisations, Scottish Ministers are required to obtain consent to the discussions from a Minister of the Crown”.

It seems that we have ranged a little beyond that.

Perhaps I should start by declaring that I have had discussions with my noble friend Lord Foulkes of Cumnock. He is at liberty to tell the House what these were. I did not actually warn him about cybernats. I should perhaps advise him that he should not read what they say because they will just make him upset—and at his age he really ought to be careful.

I will try to pick up some of the points that have been made, and make one or two of my own. First, it seems desirable to ensure that there is good co-operation between the UK Government and Scottish Ministers when they are engaged overseas. That has not always happened, and even when the Scottish Ministers were of the same political persuasion as the UK Government it did not always happen. I am not saying that there were any undue difficulties, but sometimes the co-operation broke down. I must however say that, personally, I was always grateful for advice from the Foreign Office. My noble and learned friend Lord Goldsmith, when he was Attorney-General, and I represented the United Kingdom at a conference in China between the European Union and the ASEAN countries on the issue of serious crime. I was due to chair a session of the conference which included the Attorney-General of Burma. I was unclear as to what role I should take in relation to the introduction of the Attorney-General of Burma, and I remember being very grateful for the advice that I got from the Foreign Office on that.

Secondly, it is right that both Governments respect the jurisdiction of the other, and that we recognise the frustration where it is felt that Scottish Ministers go beyond their responsibilities, particularly where it appears that they are pursuing a broader political strategy. However, Scottish Ministers have legitimate areas of activity which involve interaction with foreign Governments and intergovernmental organisations. They have responsibility for implementing directives of the European Union in the devolved area. They need to address vital European Union interests, not just in terms of directives but in terms of policy, and in doing so they interact not just with foreign Governments but with other devolved Administrations. The noble Lord, Lord Morgan, referred to the experience of the German Länder, and the way in which they go about their business.

Ministers also have responsibility for promoting trade, tourism and investment, and that of course necessarily brings them into contact with foreign Ministers and Governments. They also take an active part in intergovernmental organisations and conferences. I recently participated in a conference at the London School of Economics on what was called sub-state diplomacy. I found that quite instructive in finding out the way in which devolved Administrations work, not just in Europe but in other places; learning how Quebec, under both nationalist and liberal Governments, had promoted Quebec, and looking at the experience of Catalonia and the Belgian states in Europe.

It seems unrealistic, if I may say so, to suggest that each time Scottish Ministers were to speak to Ministers of other Administrations they should first get the consent of the Government. First of all, if you are at a conference and you are approached by a Minister of another Government it is not always possible to get that consent. Do you say “I’m very sorry, I can’t speak to you because I need to get consent from the relevant Minister”? As we have heard from the noble Lord, Lord Kerr of Kinlochard, sometimes not even the Foreign Office is able to co-ordinate.

With respect I also ask: what exactly are we attempting to do in this amendment? What sanction do we impose on Scottish Ministers if they do not get consent? We risk giving the Scottish Ministers a tool with which they can claim, yet again, that they do not have the respect of the UK Government, and that they are being gagged while they go about what they consider their legitimate business. That is not just a question of consent. If my noble friend is thinking of coming back with an amendment that they should advise or consult before they do that, the same question arises. What sanction does my noble friend suggest should be visited on a Scottish Minister who does not consult, get consent or obtain whatever other permission is required by this amendment?

We should think long and hard. I endorse a lot of what the noble Lord, Lord Martin of Springburn, said, because he made much the same point in his interesting comment, which of course comes from his long experience, mainly in the other place but also here. We should listen very carefully to these voices before we go down this road.

My Lords, it has been useful to have this discussion on foreign relations and the devolved Administration and devolved Parliament in Scotland. I share a lot of the analysis of the noble and learned Lord, Lord Boyd of Duncansby, that in fact what this amendment proposes is largely unrealistic. He questions the sanction; we can readily anticipate how it would be spun if indeed it was accepted. Indeed, the noble Lord, Lord Foulkes, accepted himself that the amendment was flawed. That said, the noble Baroness, Lady Liddell of Coatdyke, indicated that certain sentiments were associated with this that we should not lose sight of and quite properly referred to the initiative pursued by the noble Lord, Lord McConnell of Glenscorrodale, when he was First Minister, in promoting Scotland’s links with Malawi. That was done in full consultation and co-operation with the United Kingdom Government and has been widely applauded and respected. It shows that it is possible to have that kind of relationship. Indeed, as the noble and learned Lord, Lord Boyd, indicated, there are legitimate areas of responsibility that fall on the devolved Government in Scotland involving interaction with foreign Governments.

It is important, therefore, that the Committee should be aware that there is a memorandum of understanding or concordat on international relations, which deals with devolved Administration engagement with other Governments and which is therefore relevant to the Scottish Government’s interaction with foreign Governments. Two areas are identified that are of relevance here. Bilaterally, the Scottish Government may, in co-operation with the Foreign and Commonwealth Office, make arrangements or agreements with foreign Governments or international organisations on devolved matters,

“provided that such arrangements or agreements do not purport to bind the UK in international law, affect the conduct of international relations or prejudice UK interests”.

Indeed, I can think of educational agreements that have been reached. It also says:

“The Scottish Government is, however, obliged to consult the FCO in advance about any contact, correspondence, or proposal that is novel or contentious, might create a contingent international liability or may have implications for international relations”.

On international organisations it is sometimes appropriate—and this is recognised in the concordat or memorandum of understanding—for,

“Ministers or officials from the devolved administrations to form part of a UK negotiating team”.

In these circumstances,

“The UK lead Minister will retain responsibility for the negotiations and will determine how each member of the team can best contribute”.

This brings us to the issue that was raised by the noble Lord, Lord Kerr of Kinlochard, and that was spoken to by a number of other noble Lords following his intervention. He asked what the position is. The Scottish Government—his memory served him well—have put forward a proposal to have a statutory right to attend and speak at all Council meetings that relate to devolved matters. It was one of the six proposals that the Scottish Government put forward in the summer of last year. My colleagues in the UK Government are considering this request along with the other requests from the Scottish Government and will respond, but it should be clear that a statutory right to attend would inevitably have an impact on Welsh and Northern Irish representation.

Perhaps we may therefore look at what happens in practice. At present, Scottish Ministers can and do attend Council meetings when devolved matters are under discussion and do so as part of a United Kingdom delegation. My noble friend Lord Stephen indicated that there have been occasions, although perhaps not many, when a Minister from the Scottish Executive, as it then was—and still is—has led. Indeed, on more than one occasion he represented the United Kingdom, albeit as a Liberal Democrat Minister in a coalition Government representing the United Kingdom. When I was the Justice Minister in Scotland, I sat alongside Mr Blunkett when he was Home Secretary. At an appropriate point when Mr Blunkett thought that the matter under discussion was more relevant to Scotland than it was to England, I spoke on behalf of the United Kingdom.

The crucial point is that we spoke to an agreed United Kingdom line. The noble Lord, Lord Wigley, is right that on issues such as fisheries there often can be great tensions, but every effort is made ahead of the Fisheries Council to ensure that there is a United Kingdom line to which whoever speaks is expected to, and does, follow.

I understand the practicalities and that it is desirable, if at all possible, to have a united line, but does the Minister not understand that there may be a genuine difference of aspiration and that the needs of Scotland may be different from the perceived needs of the United Kingdom? Does that not put the representative from a Scottish Government in a difficult position? They will either speak against the interests of Scotland, which they represent, or speak up for Scotland and go against the agreement.

My Lords, that is the stuff of the negotiation that takes places ahead of these Council meetings. It is important that there is that good co-operation. It would not be sustainable for someone in the United Kingdom Government seat at the table to articulate a policy contrary to the United Kingdom view. Obviously, one can imagine that if a Minister from the devolved Administration did not like it, he would not be jumping to be at the meeting speaking on behalf of the United Kingdom Government.

However, these negotiations take place and I recognise enough noble Lords here from my days in the Commons who took part in the fisheries debates. The noble Lord, Lord Sewel, was the Fisheries Minister and knows full well what the run-up to the December Council meeting in particular, and others, can be like. There is a negotiation to take place and a line has to be agreed in advance, not just between the United Kingdom Government and the Scottish Government but between the Welsh and Northern Irish Administrations as well.

Perhaps my noble and learned friend will tell me if I am wrong, but my impression is that currently the Scottish Administration feel that they should have the right to send the representative Minister in fisheries negotiations.

As I indicated, the request was for a statutory right to attend. In a hypothetical situation, even if they were to be the UK Minister, they would still have to articulate what had been agreed at a quadrilateral meeting as the United Kingdom line. It is important that we recognise that for the most part this process works and has worked well. It is sometimes not the perception that one gets, but a lot of hard work and effort is put into it.

It is also the case that, when Scottish Ministers hold meetings overseas, the United Kingdom’s diplomatic missions overseas offer them the same level of support as they would to United Kingdom Government Ministers and delegations. I certainly can vouch for that. Indeed, that was my understanding shortly after I took office as the Deputy First Minister in the Scottish Executive in 1999. The then First Minister, the late Donald Dewar, indicated to me that the then Foreign Secretary, the late Robin Cook, had made it very clear that he wished Scottish Ministers visiting foreign countries to be accorded the full facilities. Certainly, it was always my experience that the help was very considerable.

It is also important to remember that, when representing devolved issues, the devolved Administrations can play a valuable role in promoting commerce, industry and culture. When Scottish Development International, a part of the Scottish Administration, arranges visits with a ministerial involvement, it works to try to bring jobs, employment and investment to Scotland and the United Kingdom, something which would be beneficial to the United Kingdom as a whole.

The noble Lord, Lord Morgan, and the noble and learned Lord, Lord Boyd, referred to the Länder. Certainly, one of the strengths of devolution is that, whereas perhaps in the past the United Kingdom Government could not readily relate to or have engagement with Catalonia or Saxony, that is a level of engagement that Welsh Ministers, Scottish Ministers and Northern Ireland Ministers are able to have, which benefits the United Kingdom as a whole.

I fear that this amendment would introduce a statutory requirement which—I have already indicated that I share the analysis of the noble and learned Lord, Lord Boyd—would not work. As I have also indicated, there is a memorandum of understanding, or concordat, in place to ensure that any engagement with Scottish Ministers is conducted in a constructive way. I hope that that will reassure Members of your Lordships’ House. The noble Lord, Lord Foulkes, has facilitated an opportunity to discuss these issues and I hope that he will follow through on what he indicated and will withdraw his amendment in the light of these assurances. This has been a useful debate.

My Lords, I am very grateful to the Minister for a helpful reply. As he said, it has been a good debate, notwithstanding the manifest flaw in my drafting of the amendment, for which I take full responsibility. Now that the Minister has drawn our attention, or reminded those of us who have seen it and been involved with it previously, to the concordat on international relations, it might be useful to draw it again to the attention of the Scottish Government in the gentle, kindly way in which he is used to doing.

Perhaps I may say to my noble and learned friend Lord Boyd that even people of my age—even people at the age of my noble friend Lord Maxton and upwards—can come up with ideas occasionally. He was worried about sanctions. Let me underline that I am not suggesting this but, for example, if any expenditure incurred by a devolved Administration were ultra vires—in other words, they were doing things for which they had no responsibility whatever—sanctions could be available.

I should like to say how much I appreciated the intervention of my noble friend—perhaps I may call him that—Lord Wigley. Perhaps I can put it this way: we are not used to quite such sensible nationalists in our parts. I thought that his contribution was very diplomatic, sensible and helpful to the debate.

Now we come to the noble Lord, Lord Kerr of Kinlochard, who I suspect, from what I know of him and from his contribution, is not quite used to the hurly-burly of Scottish politics. He will know—if he does not, I will tell him—that all of us here involved in the hurly-burly of Scottish politics are willing to make our arguments in any ring that is made available. The noble Lord, Lord Forsyth, suggested one the other week. The noble Lord, Lord Steel, and I have discussed it.

The noble Lord is underestimating the noble Lord, Lord Kerr. When he was ambassador in America and I was on a visit to Washington, he invited me to stay. He added to his invitation, “You’ll have had your tea”.

He is a Glaswegian.

I knew that he was not from Edinburgh but I did not realise that that stretched to all parts of Scotland. I know what a distinguished diplomatic career the noble Lord, Lord Kerr, has had but, with due respect, although there are not any Scottish nationalists here—there is a Welsh nationalist—as my noble friend Lord Maxton said, the invitation has been made to them. Some people within the SNP, notably Mr Peter Wishart MP, would like them to accept. I hope that they will and I urge them to accept the offer to have SNP Peers. Just because they have not accepted, that should not gag this House from debating this matter. We are part of the British constitution and the legislation of this country. It would be wrong to inhibit us because they do not take up the offer.

I thought that the noble Lord, Lord Forsyth, made a good point about the role of the Civil Service in encouraging the SNP in some of their policies in relation to the break-up of Britain. I urge him to take a look at my Amendment 73, because it will give him another opportunity to debate this issue in more detail, particularly some of the astonishing actions of Sir Peter Housden.

I have the greatest respect for my noble friend Lord Morgan, who is a most distinguished Labour historian. I accept his admonition to be careful in this. I would also ask him to have a wee look at what some of the more extreme nationalists are saying. To use the old phrase, some of my best friends are nationalists. I even had some at my famous birthday party, which my noble friend Lord Browne revealed in a previous debate, and I get on with them very well. But we should look at some of the outpourings of the more extreme nationalists. They talk about “English colonialism” as if Scotland has been colonised by England. They liken Scotland to India or some African states and say, “We must throw off the yoke”, when all of us know that many of the colonialists were in fact Scots, not English.

I am sorry to interrupt the entertaining remarks of my noble friend. I am glad that he made the point that we do not have that kind of bitter Anglophobia, but there is a danger of throwing out the nationalism of the SNP with the national sentiment of Keir Hardie and the founders of our party. We are the pluralist party, and that is very important.

I accept that. My title, as my noble friend Lord Morgan knows, is “of Cumnock”. Keir Hardie lived there and is buried there. That is why I chose it as my title. One of his planks was home rule. There are some others that I do not agree with quite as much, but with home rule I certainly do.

Temperance.

Indeed. Temperance is one other. I accept what my noble friend said. I shall move on because the noble Lord, Lord Forsyth, will raise important matters for discussion in relation to finance that we want to participate in.

The noble Lord, Lord Maclennan, raised a very interesting question with regard to Al Megrahi. My noble and learned friend Lord Boyd knows much more about it than any of us here and I do not want to go into the detail. Like the noble Lord, Lord Forsyth, I did not like seeing the saltires waved when Megrahi arrived at the airport in Tripoli. I thought that the way in which the Justice Minister in Scotland dealt with it was entirely wrong. However, to suggest, as some people have, that it was Tony Blair who told Alex Salmond and Kenny MacAskill to release Al Megrahi is just manifest nonsense. Even if he had, which he did not, can you imagine them doing his bidding on this? However, I accept the point made by the noble Lord, Lord Maclennan. It is important in relation to co-ordination between the various parts of the United Kingdom.

I want to say to my friend the noble Lord, Lord Martin, that I forgive him for his disarming intervention, which I really enjoyed. He and I have been good friends for a long time. We were talking about membership of NATO in relation to policy differences. There is also the question of the deployment of Trident. I do not know if I am giving away a secret when I say that the Joint Committee on the National Security Strategy will shortly be publishing a report which might be of interest to noble Lords. I also thought that his suggestion in relation to Canada might have some advantages. We could look at precedents with regard to protocols between provinces and federal Governments as we move towards a more quasi-federal or federal solution here in the United Kingdom.

Last and certainly not least I turn to my noble friend Lady Liddell, the Secretary of State emeritus, who as always made a most helpful contribution. She reminded us that the Malawi co-operation was in fact agreed with the Department for International Development. Interestingly, I was one of the Ministers in DfID when it was agreed. When the devolved Assemblies and Parliaments work in areas that are complementary to the work of the United Kingdom, we help each other and it is really enriching. I can see the Whip making an interesting face at me, so finally I must say that I shall withdraw the amendment.

My Lords, I shall try to be brief. The issue is covered by a number of other amendments grouped with this one. I was absolutely astonished when I reached page 2 of the Scottish edition of the Sunday Times this week. There was an article by Jason Allardyce which informed me that the First Minister, as a result of negotiation, had been able to get extra powers to raise income tax in Scotland and arrange extra borrowing. No mention was made of this orphan Bill and the fact that this is the product of the Calman commission. So far as I know we have still not had a formal response so we have not heard from the Scottish Parliament whether it is prepared to give legislative consent to it. That tells you everything you need to know about the gymnastic qualities and abilities of our glorious First Minister.

One of the things that is sad about this sad little Bill is that it is actually hugely radical in what it proposes. It will give enormous powers to the Scottish Parliament. It is devo-max, and as we have had reason to discover in our debates earlier today, it is devo-max on issues such as speed limits and so on to the point of absurdity. In this part we are dealing with the heart of huge changes that are being made, but which do not seem to be part of the debate in Scotland. Indeed, we are in an absurd position where the debate is about what further policies could be added when this Bill provides for them. Picking up on a point made by the noble Lord, Lord Foulkes, in one of his interesting newsletter blogs to his civil servant colleagues, I think that the Permanent Secretary in the Scottish Government described it as,

“lost in the mists of time”,

and no longer of relevance.

I have to apologise to my noble and learned friend. As always I had fantastic help from the Public Bill Office, but I do not think these amendments are brilliantly drafted. What I want to do is in effect get rid of the provisions that give the Scottish Parliament the ability to invent completely new taxes. Not only are we going to have a Scottish income tax, but completely new taxes can also be invented. They can invent a window tax and they can have a local income tax. My noble friend Lord Sassoon is shaking his head; I will happily give way as it might save some time if he is going to tell me that that is wrong. The only thing that stands in the way of those taxes being implemented is an Order in Council which has to be approved by both Houses of Parliament.

I am not going to start on another history lesson, but I thought that the whole point of this place—perhaps not this House but certainly the other place; and this place until 1911—is that it is not possible to raise taxes without the consent of Parliament. This provision in the Bill muddles that principle by allowing the Scottish Parliament to decide on a new tax—let us call it a local income tax, a window tax or something of that kind— and all it would require is the agreement of the Executive in London, which then has to put the proposals to both Houses of Parliament.

When it comes to the politics of this, is that really a proper check and balance on the ability to raise taxes on the people? It seems it would be politically extremely difficult in circumstances where, say, an SNP Administration decided to introduce a local income tax for either House to be able to oppose that with any political credibility. It is one thing to say, as those who argue for devo-max do, that the Scottish Parliament should be able to get all the revenues raised in Scotland and be responsible for expenditure; but it is quite another to provide for the invention of new taxes and for the only control on them to be an Order in Council, which is then subject to a resolution by both Houses.

In short, I do not believe that this clause should be in the Bill. I am very interested as to what new taxes the Government have in mind might be introduced by the Scottish Parliament, which it would fall upon the people of Scotland to pay. I am told that if you do an opinion poll in Scotland, there is great support for new powers—if you ask the people, “Would you like the Scottish Parliament to have new powers”, you will find there is a lot of support for that. However, if you ask the people of Scotland, “Would you like the Scottish Parliament to be able to invent new taxes, which would fall upon you?”, I wonder whether there would be the same level of support. If you asked them, “Would you like the Scottish Parliament to be able to invent and implement new taxes which you do not know about and which have not been discussed?”, I am not sure that that would command support. I find it extraordinary that this hugely radical change in the powers of the Scottish Parliament has not even been discussed in the Scottish media. I would wager that only a handful of people in Scotland are aware of it and of the implications.

This whole clause is not only unnecessary, it is constitutionally improper and I cannot for the life of me think why it should be there. I look forward to my noble friend telling me what problem this clause is meant to remedy and why it should be here. My amendment would simply prevent this happening without proper accountability. I think this is one of the most radical parts of the Bill and seems to be completely undesirable. I do not know whether Calman recommended it or not but I would be very surprised if such an open-ended provision was recommended, given that the Calman commission was so careful in its analysis. I will just forewarn my noble and learned friend of one thing. I am sure that in his briefing he will have lots of sentences that say, “This fulfils our manifesto commitment to implement the Calman proposal”. Well, there are other recommendations in Calman that are not in the Bill and which the Government have set their face against. So I would be careful about using that particular argument. I beg to move.

I advise the Committee that if Amendment 51A in this group is agreed to, I cannot call Amendment 51B due to pre-emption

My Lords, I rise to speak to Amendment 51A, which is in my name. The noble Lord, Lord Forsyth of Drumlean, is absolutely right when he draws our attention to the central constitutional importance of the clause. We are dealing with a fundamental constitutional issue—the power to create taxes, which is a defining characteristic of a sovereign parliament. At the moment, the new Section 80B proposed for the 1998 Act reads:

“Her Majesty may by Order in Council amend this Part so as to … specify, as an additional devolved tax, a tax of any description”.

Through this amendment, I want to ensure that any change in the tax powers of the Scottish Parliament will be subject to the scrutiny that you have with the primary legislative process rather than that which applies to secondary legislation. The Order in Council route is totally inadequate to secure the degree of political scrutiny that is appropriate and necessary. The granting of a power to enhance the taxing powers of a devolved parliament is not something that should be done lightly, casually or trivially. It should be done only through the process of primary legislation to ensure the absolute, measured, considered and examined scrutiny of any proposal. The order route is inadequate because we do not amend Orders in Council—this House is, rightly, reluctant to vote down orders and they see a very abbreviated form of parliamentary scrutiny.

Is it not an oddity that this House is not meant to consider taxation at all and yet the Bill provides for this House to approve the order?

Yes, and also, if we look at the way in which this has developed, I do not know how we come to this order solution. If you go back to 1997, the tax-varying powers then were subject to a separate question in a referendum and were incorporated in the Scotland Act as primary legislation. The Government today are bringing forward a whole series of tax-raising powers to be given to the Scottish Parliament in primary legislation. Why is it suddenly decided that any new taxes that are not specified in the Bill are going not to be subject to primary legislation but only to what I consider to be the absolutely unacceptable method of secondary legislation and Orders in Council?

I mentioned the 1997 referendum, and we know there are amendments standing in the name of some colleagues dealing with the referendum on taxing powers. I am not in favour of a referendum on taxing powers—although I took a referendum Bill through this House, I am not awfully in favour of referendums. My concern is that taxation and the power to create new taxes are of such fundamental constitutional importance that we run a very grave danger if we devalue the standing of that power and use a way of obtaining them that may be convenient for the Government but is wrong. It must be the job of the United Kingdom Parliament to be able to scrutinise any proposals for new or additional taxes in any part of the United Kingdom, through the proper parliamentary process.

My Lords, the two noble Lords who have spoken on this section have made one point with which I very warmly agree—that we are now coming to the real meat in this Bill. This afternoon we were dealing with what I call “tinkering devolution”. This is not tinkering—it is much more serious. I want to draw the attention of the House to the fact that, since the last day we discussed this Bill, there has been a very important development with the Prime Minister’s visit to Scotland and the announcement that he made. He said that if we turn down independence in a referendum, the door would be open to better and greater devolution of powers to the Scottish Parliament. One of the problems with Mr Cameron—and, indeed, with Mr Miliband and Mr Clegg, too—is that they were all at primary school in 1979, when a similar promise was made by Sir Alec Douglas-Home. That was never fulfilled, as we oldies well recall.

My submission to the House today is that the circumstances today are quite different from those in 1979. Alec Douglas-Home was an honourable man, but he was not in a position to influence Prime Minister Margaret Thatcher’s hostility to devolution. One reason why the Secretary of State, Michael Moore, is absolutely right to argue for a swift decision on independence is that we could then have two years left in this Parliament with David Cameron as Prime Minister to fulfil his promise, even though Alex Salmond does not like it.

Talking of Alex Salmond, I want to pick up on what the noble Lord, Lord Foulkes said earlier. Those who criticised Mr Salmond for his abusive rhetoric towards a BBC producer a couple of weeks back were, I submit, rather missing the point. I have to admit that I both admire and like Alex Salmond. You could put that down to prejudice stemming from our common youth in Linlithgow, where I first saw him as an angelic choir boy in my father’s church. That is not an adjective that I have heard applied to him in recent times. But admiring or liking him does not mean agreeing with him. When I switched on my television on that Saturday afternoon to watch that dreadful Calcutta Cup match, the last thing that I wanted to see was the First Minister popping up to give us his inexpert views. He should be concentrating on governing the country and not looking for camera calls wherever he can. What I admire about him is his chutzpah—but it is also slightly worrying, because there is a touch of “L’État, c’est moi”, as Louis XIV of France was reputed to have claimed. We are told by some people that to be anti-SNP is to be anti-Scottish. It is time that they understood that the rest of us actually resent being told that to be pro-Scotland you have to be pro-SNP. That is not the case.

I have been told by other broadcasters that the Salmond rugby experience was not unique for them and that the SNP heavies have made more regular calls and complaint to newsrooms than all the other political parties put together. That runs at times close to intimidation.

Does the noble Lord not think that the strangest thing about that whole incident was Alex Salmond complaining that the BBC was somehow biased against him. I suggest that anybody who listens to “Good Morning Scotland” as I do on a fairly regular basis every morning would know that the exact opposite is the truth.

I was going to go on to say that we are actually seeing a trend towards the attributes of a one-party state, where news bulletins are led by stories of what the dear leader has been doing today. That is a real danger.

There is also the question of vagueness of what independence really means for us financially. Until recently, the official position of the Scottish National Party was in favour of joining the euro, until the problems of the eurozone suggested instead that there was safety in keeping sterling, presumably with all the Bank of England controls. Some independence, that—not for them, apparently, the genuine independence of the Irish punt or the Danish kroner.

On the subject of Denmark, a former Foreign Minister of that country is a good friend of mine and a fishing companion. There was one occasion when the two of us went fishing in Iceland as a guest of the Prime Minister. My respect for them and their countries does not lead me to wish to see a Scottish Foreign Minister with similar limited global influence. I would rather have Scots such as Robin Cook and Malcolm Rifkind, both of whom I disagreed with but who wielded strength as Foreign Ministers of the United Kingdom. That is the proper role for Scots in future.

I am so glad that the noble Lord, Lord Martin, mentioned Trident, not in the context of defence policy but in that of economic and financial policy. The SNP’s little Scotland approach is best seen in its attitude to the Trident missile programme. We Liberals were never in favour of the so-called independent nuclear deterrent in the first place, and we do not wish to see it replaced. The SNP said that it would remove the base from Faslane to have it anywhere so long as it is south of Carlisle. My view is that until we succeed in getting rid of it altogether, it might as well stay where it provides many jobs and helps the Scottish economy.

I still believe that most Scots would like to see maximum devolution consistent with common sense, and I think that the noble Lord, Lord Forsyth, was right in describing opinion polls. That means substantially greater financial powers than in the clauses that we are now discussing. I regard this section of the Bill as only one small step in the right direction. It is not a new view of mine or one occasioned by the rise of the SNP. When I took office as presiding officer of the Scottish Parliament, I argued from day one that no self-respecting Parliament can exist permanently on a grant from another Parliament and that we should move to the point where the Scottish Parliament has the power to raise the money that it spends on all these devolved issues. This Bill is a significant but small step in the right direction.

Can the noble Lord just say what new taxes he thinks the Scottish Parliament might invent using this power?

I have no idea. The important point is that it should have the power to raise funds as it wishes for all the devolved issues. It is no good going on talking about refining the Barnett formula and changing the grant system. It is up to the Scottish Parliament to devise its own taxation methods and raise the money for its own purposes. That is what I would like to see happen, and this Bill moves us slightly in that direction.

I have a great deal of sympathy with the argument that the noble Lord, Lord Steel, has just expressed. I cannot see the fundamental point of principle that the noble Lord, Lord Sewel, can see. He spoke of this procedure proposed in the Bill as not providing the necessary and appropriate degree of scrutiny. The people who would be taxed are the people of Scotland who elect the Scottish Government. I cannot see any particular point of principle in saying that they may not determine the form of their taxation. States in the United States of America have a considerable degree of freedom. Local taxes are different all over the United States. In many cases, they have a balanced budget requirement. The people of Scotland, speaking through their representatives in Scotland, cannot determine the level of the Scottish deficit.

The argument that the Scottish Executive should have control over the level of taxation is one thing, but the creation of new taxes is a totally different thing.

I cannot really see that distinction. I would be more worried about the level if the level affected the balance of the deficit of the United Kingdom. The levels would have to be adjusted so that the tax take in Scotland remained the same proportionate to expenditure in Scotland. But as for the creation of a new tax, going by a different form, if the Scots chose to lower taxes in form A and raise them in form Y, provided that they came to the same amount and had the same effect on the United Kingdom Exchequer, that seems to me entirely up to them. I cannot see a point of principle there.

The problem of the deficit is really a red herring, because the deficit would be controlled by borrowing powers.

If the deficit is not important to the argument made by the noble Lord, Lord Sewel, what is the answer to mine? It is perfectly possible for the Scots, and reasonable, to decide the form in which they should be taxed.

Perhaps I could help the noble Lord by asking him a question. If his position is that the Scottish Parliament should be free to invent any tax and raise it at any level as part of the devolved settlement, why do we need to bother with having both Houses of Parliament approving it?

I agree that the Bill proposes a very eccentric procedure. I was going to go on to say that, first, on practical grounds, I would hope that no one would set up differential tax systems inside the United Kingdom. Secondly, I would not disagree with the argument of the noble Lord, Lord Forsyth, against the particular procedure for vestigial approval which is laid down here. My argument is on the point of principle of the noble Lord, Lord Sewel. Those who should be in the lead on the forms of taxation in Scotland should be the Scots; that seems to me to be clear.

I am disappointed with this bit of the Bill—

The noble Lord has challenged me on a point of principle. The argument surely must be that macroeconomic policy under the devolution settlement is reserved and, within that, it is absolutely right and proper that the United Kingdom Parliament examines any proposals for new taxation on the basis of how it impinges upon macroeconomic policy, and whether it is fair and would inflict great harm on any part of the economy of the whole United Kingdom.

Yes, that is reasonable. We certainly agree on the macro point. We disagree on whether there is a point of principle about forms of taxation. I would like to pick up on the other point made by the noble Lord, Lord Steel, about the Prime Minister's speech in Edinburgh. Here, I disagree with the noble Lord, who says that we should proceed to have the referendum as soon as possible, which would give us a couple of years to work out what devo-max means. I do not know why we do not put into this Bill what we think devo-max means, with a sunset clause. I follow the argument that the referendum should have only one question but there is a genuine problem in that the Sir Alec point made by the noble Lord, Lord Steel, certainly applies in Scotland. People up there do not really believe that the London Government intend, once one has had the referendum and if its answer is no to independence, to confer a further substantial degree of devolution.

My Lords—

May I finish my argument? That is not widely believed up there. One could set out the definition that this Parliament believes would be right for further devolution. I do not expect the noble Lord, Lord Forsyth, to agree with me because he does not want any more, but the Government indicated that there would be consideration after the referendum of a further degree of devolution—your Prime Minister said it. I understand why that will not happen unless the referendum says no to independence—that is obvious—but I cannot see why one cannot specify that now.

Perhaps the noble Lord can help me. He is quite right: I think this is a dreadful Bill which was introduced for political reasons, and that the best thing we could do with it is bin it—drop the whole thing and get on with the referendum. That is my position. However, it is a minority position, and we have the Bill and we are considering it. We are considering a clause on which the noble Lord, Lord Sewel, who after all was the midwife of the Scotland Act and believes in all this stuff, and I are agreed that it is a huge transfer of power. To me, that is devo-max.

I have no idea what the Prime Minister was thinking of when he said that there would be more devolution after it had been decided that Scotland would remain in the United Kingdom. I cannot think of anything that could be added that is not already in this Bill. This clause which we are considering, for example, provides enormous scope to introduce new taxes, so I would say that this is devo-max. The noble Lord is absolutely right that the people of Scotland do not know about it, because nobody is actually reporting it. We are all debating something that is already here in this Bill, and which was actually delivered by the previous Labour Government—with the support of my party, which I must say was very foolish. Having said that, what does the noble Lord, Lord Kerr, mean when he says that we should have something added? What would he add to this Bill that would be devo-max? Can he tell me?

That is a very fair challenge and I have no complete answer. In respect of taxation, I would argue that devo-max should be precisely what the noble Lord, Lord Sewel, does not want: that the Edinburgh Parliament should be entitled to decide on the forms of taxation. There would need to be the macroeconomic control, which he and I would need to discuss, but the forms of taxation within a given tax take—or rather within a given deficit control, because that is where the control would be—seems to be something which should be devolved in principle. I have made my point and I do not see the point of principle here. I would argue that the difficulty with devo-max is: who is going to specify it? I cannot see Mr Salmond's interest in specifying devo-max, because he wants independence—

I wonder whether, when the dialogue is complete, other people might answer your question.

Perhaps I should try to finish my remarks.

If the noble Lord will allow me, surely the point he is making is valid. If the post-referendum decision is not to go independent and we take the Prime Minister at his word that more is on offer, it is possible for all the parties—including the SNP, as the Scottish Government—to join in working out the best form of devolution-plus, as I prefer to call it, which enables the Scottish Parliament to raise the money that it spends.

I entirely agree with the noble Lord. I suppose that my motive, as one who believes in the union and does not wish for Scottish independence, is that it seems that the chances of a vote for Scottish independence would be much reduced if the credibility of the devo-max option had been enhanced by its prior specification. I cannot see who is going to do that and I am rather sorry that we seem to be going to miss the opportunity in this Bill to do it, subject to a sunset clause.

Perhaps I can say a few words on this amendment, as one of the people whom the noble Lord, Lord Kerr, describes as being “up there”. I am living in Edinburgh, I am a resident, and I will be voting in whatever referendum we have. I am looking forward to it. I do not think of it as “up there”; it is where I live and what I am part of. This is the amendment on which the noble Lord, Lord Forsyth, and I are going to disagree—at last—because I agree with the noble Lord, Lord Steel. We need full fiscal responsibility in Scotland, and we need to move towards that. Some people call it full fiscal autonomy; I call it full fiscal responsibility.

Is it devo-max? As other people have said, I do not know what Salmond means by devo-max. If he means other functions such as welfare or pensions being transferred to Scotland, I am totally against that. It would be catastrophic and cause tremendous problems in breaking up the system that has existed for so long in the United Kingdom. However, full fiscal responsibility is different. Having been in the Scottish Parliament, I know that at the moment it has responsibility for spending the money but not for raising the money. That means that you are irresponsible, and that at any time when you do not have any money you blame Westminster and say that the Barnett formula is not giving you enough. This is the problem that the noble Lord, Lord Kerr, referred to: how do you get to full fiscal responsibility?

I agree with the noble Lord, Lord Steel, and we might both get vilified for this, that David Cameron was right. He was right to say that once Scotland rejects separation, and we must reject it, the door will be open for discussions. There will be a dialogue between Westminster and Holyrood about the new form of devolution. The Secretary of State for Scotland is right that we need that yes/no vote as quickly as possible so we can reject separation and move on to discussing what kind of devolution we want. We could have a referendum with devolution options, but it would be far better if the federalist, unionist and devolutionary parties were to work out an agreed formula for the new enhanced devolution and full fiscal responsibility through a convention—

I am most grateful to the noble Lord for giving way. I am delighted to be able to disagree with him. Could he table an amendment on Report that includes the elements that he thinks would be added after the referendum that would provide more devo-max devolution? I cannot think of anything, and he has already reserved his position on welfare. What would it contain? This is already in the Bill.

When we get to the Minister’s reply, I think we will find that it is not already in the Bill in the form that I would like. We need to work out exactly how much is needed to fund the planned expenditure of the Scottish Parliament and to look at ways in which that can be funded through taxes raised by the Scottish Parliament. Some people in Scotland, MSPs and others, including Peter Duncan of the Conservative Party, have come out with a scheme that they call devo-plus. I do not agree with it fully but it deserves looking at. It is one of a number of options that should be looked at for funding Scottish expenditure with income from within Scotland.

Way back in the mists of time, I used to construct a series of social surveys. One of them was a series of questions on the powers of local government. We asked people two sets of questions: the first on which powers were at which tier of local government; and the second on whether local government should have more powers. The initial answer to the latter question was always yes. Then we asked what powers they wanted to see local government have, and about 90 per cent of them were powers that local government already had. That is the problem with the “more powers” argument: it assumes that people are fully aware of the powers that the Parliament already has. I simply do not think that that is the case.

I wish I had not given way; that intervention was not all that helpful to my argument. If the noble Lord, Lord Steel, David Cameron and I can agree on a way forward, there must be some hope that this rainbow coalition will find out what is best for Scotland and for Britain, and will avoid the dangers of separation and of breaking up the United Kingdom. That is the way forward. I have spoken for quite long enough now.

My Lords, I had not intended to take part in this debate because I have not had the opportunity to do the groundwork in order to understand what my noble friend Lord Forsyth’s amendments are all about. The House is greatly in his debt for bringing to our attention the most extraordinary proposal contained in the Bill. Listening to the noble Lord, Lord Steel, I got the impression that he was arguing that we should support the Bill because we know that it is a bad Bill and that the financial provisions will not be adequate for Scottish needs. I am happy to let him intervene and correct that if I am wrong, but if he does so I know that several other people have now argued almost exactly the same point. Personally, I believe that if a Bill is bad you should not pass it, which is why in my Second Reading speech I called for it to be withdrawn. To pass a Bill because you know it is bad seems to be fundamentally wrong.

We know that the Bill will not meet the needs of the Scottish finances because in order to do so it would have to ensure that as the Barnett formula was withdrawn over time, Scottish incomes rose at the same level at least as UK public expenditure has done over the years. Research done by a couple of academics, Professor Hughes Hallett and Professor Scott, discovered that in the eight years to 2008 there was a differential between those two measurements of 0.21 per cent per annum. Over a period of time, Scottish incomes were not rising as fast as UK revenue.

There are countless arguments which could explain why the Bill cannot work and that the finances provided by this 10 per cent tax discretion will be inadequate, but that alone seemed to be a telling one. I noticed that the answer given by the Treasury in previous discussions in another place—I would be grateful if my noble friend Lord Sassoon addressed this matter in his wind-up—was that that had been true over the past eight years but would not be true over the next five years because public expenditure has been heavily reined in. I suspect that incomes in Scotland are also being pretty heavily reined in, particularly because there is a higher preponderance of public servants whose numbers are likely to be reduced and whose incomes are being controlled, and partly because the Scottish economy is in a very much poorer state than the rest of the United Kingdom’s.

One could dilate on a whole load of other reasons why the finances will not work, but the provision in the Bill to create a new tax seems to have been inserted subtly and quietly by the Government because they, too, know that the provision will be inadequate. With the Bill we are not talking about a provision to help Scotland take control of its finances and create a new accountability; in fact it is to demonstrate the complete inadequacy of provisions of this kind for Scottish accountability. That means that it is not a Bill at all but a Trojan horse.

Many noble Lords seem keen to use the failures of the Bill, which they all discern, as a springboard to bring in another Bill to create devo-max, if you like to call it that, more high taxation and other measures. Almost every measure that the Scottish Government might like to control in due course, like pensions responsibility and social welfare, will reveal further inadequacies in the Scottish capacity to provide for them once they are transferred out of the United Kingdom. Noble Lords are creating this springboard towards separation where, under what they call devolution, we shall be independent in Scotland in all but name, and possibly ultimately in name as well. That would create a situation that is not what we are supposed to be debating, so the whole debate is being conducted under a cloud of self-deception in the hope that no one will notice that failure is built into the provisions of the Bill.

My noble friend Lord Forsyth has put his finger on this point extraordinarily effectively, and I am ashamed that I had not noticed it myself when reading the Bill. I ask my noble friend on the Front Bench to address this issue and explain why the provision is there and how he thinks it will be used in future.

My Lords, I agree with the noble Lord, Lord Lang of Monkton, that we owe a debt of gratitude to both my noble friend and the noble Lord, Lord Forsyth of Drumlean, for the amendments that they have brought forward to this part of the Bill and for the way in which they have put forward the arguments that have opened this debate.

This is the heart of the Bill. It is an important constitutional Bill, as I said in my opening remarks today when the Committee convened. I also said that noble Lords could be forgiven for thinking otherwise, given the management of its passage through the Houses of Parliament. I regret that. To the extent that I have agreed on occasion to days and dates for the management of the Bill, on reflection I now regret doing that because it is such an important constitutional Bill. No Members of the Committee should be mistaken that this is not a Bill of constitutional significance and of potential practical significance for the people of Scotland. However, without the provision that noble Lords seek to delete with their respective amendments, I do not believe that the Bill could be described in these terms at all. What was left of the Bill would be far less significant. Indeed, the Secretary of State for Scotland, Michael Moore, said in his evidence to the Scottish Affairs Select Committee that without this provision, this would be,

“a smaller, less impressive Bill”.

Those are the words that he used and they are recorded not only in the evidence that he has given but quite clearly in volume I of the fourth report of Session 2010-12 of the Commons Scottish Affairs Committee, to which I shall refer later on because it raises a number of other important and serious issues that need to be addressed before we conclude our deliberations on the Bill. He said that it would be a smaller and less impressive Bill, and that view is reflected in the Select Committee’s report.

Lord Sewel.

I thought my noble friend Lord Maxton said that. I am sorry; it was my noble friend Lord Sewel. If I had had a private conversation with the noble Lord, I might have been able to reveal that beforehand. The noble Lord, Lord Kerr, in part of his contribution that was very helpful, blew that out of the water. States in the United States of America have, within the federal structure, the ability to raise taxes without being sovereign. Across the world, I am sure there are many other examples that I do not know about of devolved Administrations having the power to raise taxes within constitutions that deny them sovereignty. I am certain that I could find them if I had the research facilities available to me.

I will not make a smart-alec point—although I should not say “Smart Alec” in this context in this debate—about other states that can raise taxes. I follow the noble Lord’s argument, which I absolutely respect. However, I respectfully suggest that he needs to distinguish between the ability to raise taxes and the ability to create new taxes. The point that his noble friend and I were making is that this clause gives the Scottish Parliament the power to create completely new taxes. His noble friend argued, as I did, that that is distinct from being able to raise taxes. There are states in the US that can set the sales tax but, as far as I am aware, do not have the freedom to invent completely new taxes. However, I might be wrong about that.